IN THE CASE OF:	  

		BOARD DATE:	  13 NOVEMBER 2008

		DOCKET NUMBER:  AR20080015850 


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, characterized as under other than honorable conditions (UOTHC), be changed to a general, under honorable conditions, discharge or an honorable discharge.

2.  The applicant states, in effect, that at the time of his original discharge, he was a young and stupid man, thinking that he had served his country and just wanted to go home.  He adds that he had the mindset of a 20 year old man and did not understand the ramifications of getting a UOTHC discharge.  Now 37 years later, as a 57 year old man, he understands what it means to have an honorable discharge. 

3.  The applicant provides no additional documentation in support of his request.

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 on 31 October 1969, at the age of 18 years, 5 months, and 10 days.  His date of birth is 21 May 1951.  He was trained as a Radio Relay & Carrier Attendant, in military occupational specialty (MOS), 31M.  He was promoted to pay grade E-3 on 25 June 1970.

3.  On 21 July 1971, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 17 May 1971 to 14 June 1971.  His sentence consisted of confinement at hard labor for 28 days and a forfeiture of $55.00 pay for 1 month.

4.  Charges were preferred against the applicant on 10 January 1972 for the wrongful possession of marijuana and LSD (lysergic acid diethyiamide) on 7 November 1971.

5.  On 11 February 1972, the applicant consulted with 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 acknowledged that he might encounter substantial prejudice in civilian life and he might be ineligible for many or all benefits administered by the VA if an undesirable discharge were issued.  
He waived his rights and elected to submit a statement in his own behalf; however, the statement is not available for review.

6.  On 2 March 1972, the separation authority approved the applicant's request for discharge and recommended that he be furnished an undesirable discharge and that he be reduced to the lowest enlisted grade.  

7.  The applicant was discharged in the rank of private, pay grade E-1, on
6 March 1972.  He had a total of 2 years, 3 months, and 8 days of net active service and 28 days of lost time due to being AWOL.

8.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  

9.  Army Regulation 635-200 set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time, after the charges had been preferred, submit a request for discharge for the good of the service,
in lieu of trial by court-martial.  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.

11.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant had a pattern of misconduct. He received one special court-martial for AWOL, 28 days, and charges were preferred against him for the wrongful possession of marijuana and LSD.

2.  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 appears to be administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  The approval authority approved his request and recommended that he be furnished an undesirable discharge characterized as UOTHC.

3.  The applicant stated, in effect, that at the time of his original discharge, he was a young and stupid man, thinking that he had served his country and just wanted to go home.  It is noted that he was 18 years, 5 months, and 10 days of age at the time of his entry on active duty and was 20 years, 9 months, and 16 days of age on the date of his discharge.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.

4.  The applicant claims that he had the mindset of a 20 year old man, did not understand the ramifications of getting a UOTHC discharge, and now 37 years later, as a 57 year old man, he understands what it means to have an honorable discharge.  Prior to the approval of his discharge by appropriate authorities, he acknowledged that he might encounter substantial prejudice in civilian life and he might be ineligible for many or all benefits administered by the VA if an undesirable discharge were issued.  This indicates that he understood the ramifications of receiving an undesirable discharge, characterized as UOTHC.

5.  The evidence of record clearly shows that it has been approximately 36 years or more since he received his undesirable discharge.  There is no evidence in the applicant's records, and the applicant has provided no evidence, to show that he attempted or applied for an upgrade of his discharge to the ADRB within the 
15-year statute of limitations.  

6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise 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)                                         AR20080015850



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ABCMR Record of Proceedings (cont)                                         AR20080015850



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