IN THE CASE OF:	  

		BOARD DATE:	         23 October 2008 

		DOCKET NUMBER:  AR20080013858 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge be upgraded to a general, under honorable conditions discharge.

2.  The applicant states, in effect, that information given to him at the time of his special court-martial led him to understand that his discharge was in fact a general discharge under honorable conditions.  The applicant continues that the length of his AWOL period was not in excess of 180 days and the circumstances surrounding his unauthorized absence were compelling.

3.  The applicant provides a self-authored statement and a letter of support from a family member as additional documentary evidence in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he enlisted in the Army at the age of 18, on       6 February 1968.  He completed basic combat and advanced individual training (AIT).  Upon completion of AIT, he was awarded the military occupational specialty 62B (Engineer Equipment Repairer).  He was honorably discharged on 28 April 1970 for immediate reenlistment on 29 April 1970 for 6 years.

3.  Records show that the complete facts and circumstances of the applicant's discharge are not available for review with this case.  There are however, sufficient records available to make a fair and impartial decision in this case.

4.  The applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions:  on 29 June 1970, for failing to be at his appointed place of duty; on 19 August 1970, for being absent from his unit; on 12 October 1970, for operating a vehicle in a reckless manner and for operating a vehicle on post after his driving privilege had been revoked; on 24 August 1971, for disobeying a lawful order from a superior      noncommissioned officer and for failing to go at the time prescribed to his appointed place of duty; on 28 November 1971, for missing work formation on    2 occasions; and on 23 March 1972, for failing to go to his appointed place of duty. 

5.  On 31 August 1972, the applicant was convicted by a special court-martial for being absent without leave (AWOL) during the periods of 29 April 1972 to 26 May 1972 and 8 June 1972 to 17 July 1972.  This punishment consisted of reduction to the grade of private (PV1), E-1; forfeiture of $100.00 per month for 5 months;   confinement at hard labor for 3 months; and to be reprimanded.

6.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions) dated 24 October 1972, shows the applicant departed AWOL on 24 October 1972 and returned on 27 October 1972.  The DA Form 268 also shows the applicant was pending special court-martial proceedings.

7.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was discharged on 15 December 1972 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of trial by court-martial with an undesirable discharge, with service characterized as under conditions other than honorable.  The applicant completed 2 years, 2 months, and 15 days of creditable active service this term of service with 152 days of lost time due to AWOL.

8.  The applicant provided a 3-page self-authored statement and a letter of support from a family member which essentially states that he encountered certain difficulties during his childhood that may have contributed to his pattern of misconduct.  In his statement, he also contends that based on block 25 of his DD Form 214, he should be entitled to all the benefits of an honorable discharge. This section of his DD Form 214 pertains to education and training completed and does not indicate characterization of service.   

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. An under other than honorable conditions discharge is normally considered appropriate.  However, at the time of the applicant's separation an undesirable discharge was normally considered appropriate.

10.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Separations under the provisions of chapter 10 of Army Regulation 635-200 are voluntary separations, in which the applicant must admit guilt of the charges.  Although, the applicant's separation processing paperwork is not available for review with this case, it is presumed that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.

3.  Record of indiscipline includes several punishments under the provisions of Article 15 UCMJ and a conviction by a special court martial for being AWOL.

4.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

5.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

6.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X___  __X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080013858



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ABCMR Record of Proceedings (cont)                                         AR20080013858


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