IN THE CASE OF:	  

		BOARD DATE:	       4 December 2008

		DOCKET NUMBER:  AR20080015235 


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 (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he requested a hardship discharge based on his father being deceased and his mother needing him at home; however, instead of granting him a hardship discharge, he received an UD.  He further states that based on the hardships he faced while in service, he is now requesting an upgrade of his UD.

3.  The applicant provides his separation document (DD Form 214) and three third party statements in support of his 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 record shows he enlisted in the Regular Army and entered active duty on 9 July 1969.  His record also shows he never completed advanced individual training (AIT) and he was never awarded a military occupational specialty (MOS).  

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows, in Item 41 (Awards and Decorations), that he earned the National Defense Service Medal (NDSM) and Marksman Marksmanship Qualification Badge with Rifle Bar during his tenure on active duty.  Item 44 (Time Lost Under Section 972 Title 10 United States Code and Subsequent to Normal Dates ETS) shows he accrued 150 days of time lost while absent without leave (AWOL) from 5 October 1969 through 
3 March 1970.  His record documents no acts of valor, significant achievement or service warranting special recognition.  

4.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does include a DD Form 214 that shows he separated under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial, and that he received an UD on 24 April 1970.  This document also confirms he completed a total of 2 months and 16 days of creditable active military service and that he accrued 150 days of time lost due to being AWOL.  It further shows that during the period covered by the DD Form 214, he earned the NDSM and Marksman Marksmanship Qualification Badge with Rifle Bar.  The applicant authenticated this document with his signature on the date of separation.  

5.  The applicant provides third party statements from his pastor, friends and family, who all attest to the applicant’s honesty and work ethic, and confirm he is a good and loving father.  These individuals also indicate the applicant regrets the indiscretions of his youth and deeply desires to make right the decision he made during his service to the country, and they all recommend that the applicant’s request be granted.  

6.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 
15-year statute of limitations.  


7.  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 (UOTHC) is normally considered appropriate.  However, the separation authority can authorize a general, under honorable conditions discharge (GD) or an honorable discharge (HD) if warranted by the member's overall record of service. At the time of the applicant's separation the regulation provided for the issuance of an UD.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UD should be upgraded to an HD based on the hardships he faced while serving on active duty and based on his good post service conduct was carefully considered.  Although the applicant’s post service conduct, as outlined in the supporting statements provided, is noteworthy, these factors alone is not sufficiently mitigating to support an upgrade of his discharge at this late date.  

2.  The available evidence does not include a separation packet containing the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a properly constituted DD Form 214 that confirms he had accrued 150 days of lost time due to being AWOL, and identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed. 

3.  The applicant’s separation document confirms he was discharged under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice (UCMJ).  Procedurally, he was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  


4.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition, and was not sufficiently meritorious to support the issuance of an HD or GD by the separation authority at the time of the applicant’s discharge, nor does it support an upgrade of his discharge at this time.  The applicant’s UD accurately reflects his overall record of service and it would not be appropriate or serve the interest of others who served and faced similar circumstances to support an upgrade of his discharge at this time. 

5.  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.




      _______ _   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)                                         AR20080015235



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ABCMR Record of Proceedings (cont)                                         AR20080015235



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