IN THE CASE OF:	  

		BOARD DATE:	  	  13 November 2008

		DOCKET NUMBER:  AR20080014524 


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.  

2.  The applicant states that he was told he would still be able to receive Veterans Affairs (VA) medical care when he was discharged.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 was inducted into the Army of the United States on 15 December 1967.  

3.  Charges were preferred against the applicant on 22 November 1969 for two specifications of being absent without leave (AWOL), from 28 September 1968 to 10 February 1969 and from 20 March 1969 to 22 November 1969.

4.  On an unknown date, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life.  He also acknowledged that he might be ineligible for many or all Army benefits administered by the VA if an undesirable discharge was issued.  He did not submit statements in his own behalf.  

5.  On 2 March 1970, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 with issuance of an Undesirable Discharge Certificate.

6.  On 27 March 1970, the applicant was discharged from active duty under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an undesirable discharge.  He had completed 1 year, 2 months, and 29 days of active military service with 382 days of lost time due to AWOL.

7.  There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

8.  Army Regulation 635-200 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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

9.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  
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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The applicant was afforded the opportunity to submit statements in his own behalf, but he failed to do so.

3.  The applicant's record of service shows he was AWOL on two separate occasions for a total of 382 days.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for an upgrade to an honorable or general discharge.

4.  The applicant’s statements are noted.  However, he acknowledged that he might be ineligible for many or all Army benefits administered by the VA if an undesirable discharge was issued to him during the chapter 10 discharge process.

5.  There is no evidence of record which indicates the actions taken in his case were in error or unjust, therefore, there is no basis for granting the applicant's request for an upgrade of his discharge.

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.




      _______ _XXXX   _______   ___
               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)                                         AR20080014524





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ABCMR Record of Proceedings (cont)                                         AR20080014524



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