IN THE CASE OF:	  

		BOARD DATE:	        06 JANUARY 2009

		DOCKET NUMBER:  AR20080014911 


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 discharge. 

2.  The applicant states that he was young and immature at the time, and that he joined the Army to escape physical abuse from his stepfather.  He also states that his use of drugs and alcohol played a role in why he was issued an undesirable discharge and that due to the aforementioned factors, he believes his discharge should be upgraded.  He further states that after years of counseling and drug rehabilitation, he was able to put all of his issues behind him, but that he regrets not serving his full term in the military.   

3.  The applicant provides no additional 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 military records show that he enlisted in the Regular Army on 26 September 1975.  At the time of enlistment, he was 17 years and 3 months old.  He was assigned to Fort Knox, Kentucky and completed basic combat training.  He was in advanced individual training at Fort Knox when he went absent without leave (AWOL) on 12 January 1976.  On 14 January 1976, he was apprehended by civil authorities in Downey, California and held pending release to the Long Beach AWOL Apprehension Team.  The applicant was transferred to the Long Beach [California] AWOL Apprehension Team on
14 January 1976 and was placed on administrative absence/permissive travel in order to return to Fort Knox; however, he failed to report back to his unit and he was again placed in an AWOL status, effective 17 January 1976, and dropped from the rolls of the Army on the same day.  On 20 January 1976, he was apprehended by military authorities in Long Beach and was reassigned to the United States Army Personnel Control Facility, Fort Ord, California.

3.  On 28 January 1976, the applicant was informed that charges were preferred against him for absenting himself without authority from his unit on or about 
12 January 1976 and remaining so absent until on or about 14 January 1976; for absenting himself without authority from his unit on or about 17 January 1976 and remaining so absent until on or about 20 January 1976; and on or about
20 January 1976, escape from lawful custody of the Army AWOL Apprehension team, Long Beach, California; offenses punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.

4.  Additionally, on 28 January 1976, a Judge Advocate General's Corps lawyer informed the applicant that he was pending trial by court-martial and, that if convicted, the Manual for Courts-Martial authorized as a part of the punishment for his offense the issuance of a bad conduct or dishonorable discharge.  This lawyer was also informed that the applicant desired to submit a request for discharge for the good of the service under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  This lawyer also indicated that before he permitted the applicant to make his request, he explained to the applicant the provisions of Chapter 10, advised him as to the probable nature and effects of a discharge under this regulation, and advised him of certain rights that he had and could exercise.  

5.  This lawyer made it clear to the applicant that the Army was not trying to separate him at that point, and that if he did request discharge for the good of the service, it must be his voluntary choice; that no person could make, force, or 
coerce him to ask for this discharge.  This lawyer also warned the applicant against widespread rumors that an undesirable discharge could easily be changed to an honorable discharge after his release, or that after a certain time it would automatically become honorable, and that these rumors were totally false. This lawyer also advised the applicant about the Army Discharge Review Board (ADRB) and the ABCMR, and furnished statistics to the applicant so that he would know that if, as was likely, he was issued an undesirable discharge, in all likelihood, that discharge would remain with him for the rest of his life.

6.  On 2 February 1976, the applicant voluntarily requested discharge for the good of the service under the provisions of Chapter 10, Army Regulation 
635-200, and understood that he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he was making his request of his own free will, and had not been subjected to coercion whatsoever by any person.  He also acknowledged that he had been advised of the implications that were attached to his request for discharge.  He further acknowledged that by submitting his request for discharge, he was guilty of the charge against him or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  Moreover, he stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

7.  In his request for discharge, the applicant also acknowledged that he understood that if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further understood that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs), and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law.  He also understood that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected to submit a statement in his own behalf.





8.  On 17 February 1976, the proper separation authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and directed that he be furnished an Undesirable Discharge Certificate.  He also directed the applicant’s immediate reduction in rank to the lowest enlisted grade.  On 
26 February 1976, the applicant was discharged accordingly.  

9.  In a letter, dated 30 May 1989, the ADRB informed the applicant that his petition to upgrade his discharge was denied.

10.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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 trail by court-martial.  At the time, an undesirable discharge was normally considered appropriate; however, if warranted, the discharge authority may direct an honorable or general discharge.

11.  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.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to a general discharge.

2.  The applicant's contention that he was young and immature at the time was considered.  Records show that the applicant was 17 years and 3 months old at the time of his entry onto active duty.  However, the applicant had the maturity 
necessary to successfully complete basic combat training, and there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The applicant's contention that he entered the Army to escape physical abuse from his stepfather was also noted.  However, it is clear that the applicant did not like the Army and would do whatever it took at the time to get discharged.

4.  The applicant’s contention that his use of drugs and alcohol played a role in his discharge was also noted.  However, there is no evidence that he ever sought assistance from his chain of command or medical treatment facility regarding any issues he was having with drug or alcohol use.

5.  It is clear that the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily (emphasis added) requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

6.  Based on the applicant's 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 an honorable or general discharge.

7.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement. 

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.



      ________XXX______________
               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)                                         AR20080014911



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ABCMR Record of Proceedings (cont)                                         AR20080014911



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