IN THE CASE OF:	  

		BOARD DATE:	        06 JANUARY 2009

		DOCKET NUMBER:  AR20080015565 


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 an honorable or general discharge.

2.  The applicant essentially states that not all records were signed, and requests a change to his discharge.  He also states, in effect, that he was suffering from stress at the time, and was not at full mental capacity for service.  

3.  Although the applicant states that he provided copies of military reports in support of this application, he only provided a Standard Form 180 (Request Pertaining to Military Records), dated 26 June 2008 and a letter, dated 
5 September 2008, from the National Personnel Records Center 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 6 July 1971 for a period of 3 years.  He completed basic training at Fort Ord, California and advanced individual training at Fort Eustis, Virginia and was awarded military occupational specialty 57H (Cargo Handler).  He remained at Fort Eustis for his initial permanent duty assignment.

3.  On 30 March 1972, the applicant was honorably discharged for the purpose of immediate reenlistment.  On 31 March 1972, he reenlisted for a period of
6 years.

4.  On 6 November 1972, the applicant went absent without leave (AWOL), and remained in this status until on or about 14 November 1972.

5.  The applicant's military records show that he had at least two mental status evaluations, and the applicant was psychiatrically cleared for any administrative action deemed appropriate by his command.

6.  In an undated letter, the applicant's commanding officer recommended that he be required to appear before a board of officers convened under the provisions of Chapter 13 (Separation for Unfitness or Unsuitability), Army Regulation 635-200 (Enlisted Personnel) for the purpose of determining whether he should be discharged before the expiration of his term of service.  He also stated that the applicant's discharge was recommended because of his behavioral difficulties with significant anxiety, and that his attitude and morale were not that expected of a Soldier at that time.  He further essentially stated that it was not felt that any further rehabilitative efforts would be productive or beneficial for the individual or the United States Army.  However, the record is silent as to any action taken on the commander's recommendation.

7.  On 15 January 1974, the applicant was informed that charges had been preferred against him for absenting himself without authority from his unit on or about 1 October 1973, and remaining so absent until on or about 28 October 1973, from on or about 18 November 1973 until on or about 23 November 1973, and from on or about 28 November 1973 until on or about 5 December 1973; offenses punishable under the UCMJ with a punitive discharge.

8.  Also on 15 January 1974, the applicant voluntarily requested 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, and acknowledged that he had not been subjected to coercion with respect to his request for discharge, and had been advised of the implications that were attached to it.  He 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 and 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 named 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 further understood that he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected to submit a statement in his own behalf.

9.  In his statement, the applicant essentially stated that family problems had become so bad, and from what had happened to him in the Army, he no longer felt he would be fit for duty.

10.  On 22 January 1974, 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 essentially directed that the applicant be reduced to the rank and pay grade of private/E-1.  On 30 January 1974, the applicant was discharged accordingly.  

11.  In a letter, dated 20 January 1982, the Army Discharge Review Board (ADRB) informed the applicant that after careful consideration of his military records and all other available evidence, it was determined that he was properly discharged.  However, the ADRB determined that the reason and authority for his discharge should be changed, and corrected his military records to show that he was discharged under the provisions of paragraph 14-33b(2), Army Regulation 635-200 for misconduct – an established pattern of shirking.  

12.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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.  At the time, an undesirable discharge was normally considered appropriate; however, if warranted, the discharge authority may direct an honorable or general discharge.

13.  Paragraph 14-33b(2) of Army Regulation 635-200, in effect at the time, also provided for a Soldier's discharge due to patterns of misconduct due to an established pattern for shirking.  An undesirable discharge was normally considered appropriate.  

14.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  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 contends that his undesirable discharge should be upgraded to an honorable or general discharge.

2.  The applicant's contention that not all records were signed was considered.  However, all of the paperwork surrounding his request for discharge in lieu of trial by court-martial is properly authenticated, and the applicant failed to clarify what records he claims were not signed.

3.  The applicant's contention that he was suffering from stress at the time and was not at full mental capacity for service was also considered.  The fact that his commanding officer indicated in his recommendation for the applicant's discharge for unsuitability, which was never completed, that the applicant had behavioral difficulties with significant anxiety was noted.  However, on at least two occasions, the applicant underwent mental status evaluations, which essentially cleared him psychiatrically for any administrative action deemed appropriate by his command.

4.  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 characterization of service accurately reflects his overall record of service.  Additionally, while the ADRB found it fit to change the reason and authority for his discharge, they appropriately determined that his undesirable discharge was proper.  

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.

6.  Based on the applicant's record of indiscipline, which included him accepting nonjudicial punishment under Article 15 of the UCMJ, and four instances of AWOL, the last three offenses for which he voluntarily requested discharge in lieu of a court-martial, 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.  

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)                                         AR20080015565



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ABCMR Record of Proceedings (cont)                                         AR20080015565



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