IN THE CASE OF:	  

		BOARD DATE:	        5 February 2009

		DOCKET NUMBER:  AR20080016153 


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, his under other than honorable conditions (UOTHC) discharge be upgraded.

2.  The applicant states he does not feel his case was properly handled.

3.  The applicant provides no additional documentation.

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 enlisted in the Regular Army for 6 years on 30 September 1968. He was trained in and awarded military occupational specialty (MOS) 13B (Field Artillery Crewman).

3.  The applicant’s record of assignments is incomplete; however, it appears he served in Vietnam during two tours, 24 April 1967 through 23 April 1968 and
20 February 1970 through "19 February 1974."

4.  The applicant had multiple periods of absence without leave (AWOL) as follows:

	a.  11 November 1968 to 23 December 1968 – a period of 43 days;

	b.  13 May 1969 to 16 August 1969 – a period of 96 days;

	c.  8 October 1969 to 17 November 1969 – a period of 41 days;

	d.  28 January 1975 to 10 February 1975 – a period of 14 days;

	e.  5 March 1975 to 23 March 1975 – a period of 19 days; and

	f.  21 April 1975 to 11 August 1975 – a period of 113 days.

5.  The applicant's records contain two court-martial convictions for being AWOL, and four records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for the following reasons: 

   a.  willfully disobeying a lawful order to have his section ready for inspection on 7 March 1973 (while in Germany) and willfully disobeying a lawful order to make repairs to a vehicle on 8 March 1973, for which he received a reduction from Sergeant (SGT/E-5) to Corporal (CPL/E-4), a forfeiture of $150 pay per month for 2 months, and 45 days of extra duty – all punishments suspended for 60 days or until 18 May 1973.

	b.  being absent AWOL from his unit from 18 July 1973 to 23 July 1973 (while in Germany) and for willfully disobeying a lawful command to sign out at Battalion Headquarters on 17 July 1973, for which he received a reduction from SGT to Specialist Four (SP4/E-4), a forfeiture of $230 pay per month for 2 months, and 45 days of extra duty.

	c.  failing to go to work call formation on 3 and 4 June 1974, for which he received a reduction from SP4 to Private First Class (PFC/E-3), suspended for 30 days.


	d.  being AWOL from his unit from 28 January 1975 to 11 February 1975, for which he received a reduction from SP4 to PFC, a forfeiture of $150 pay per month for 2 months, and 45 days of extra duty.

6.  During his last period of AWOL (21 April 1975 to 11 August 1975), the applicant was apprehended by the Federal Bureau of Investigation (FBI) on 12 August 1975 in Grandville, Tennessee, and transferred to Fort Campbell, Kentucky, where court-martial charges were preferred against him for being AWOL.

7.  The applicant’s record does not contain a copy of his administrative discharge packet.  However, the applicant’s record contains a properly constituted DD Form 214 which identifies the reason and characterization of the discharge.  The evidence of record shows the applicant was discharged under the provisions of chapter 10, Army Regulation (AR) 635-200, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted guilt to the stipulated or lesser included offenses under the UCMJ.

8.  AR 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.  The regulation further states:

	a.  in paragraph 3-7a that an Honorable Discharge (HD) 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.

	b.  in paragraph 3-7b that a General Discharge (GD) 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 HD.  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.  Court-martial charges were preferred against the applicant for 113 days of AWOL.  Had he been tried and convicted, he could have received a punitive discharge and a sentence to confinement.  In the absence of information to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  The applicant's request for a chapter 10 discharge, even after presumed consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

3.  The applicant's contention that he was improperly treated is not persuasive.  He departed his unit in an AWOL status of his own free will and did not return of his own free will, having to be brought back by the FBI.  Reviewing all of his misconduct and records of punishment, it is apparent his commanders were always lenient with him in hopes of correcting his behavior without causing permanent harm by giving him minor punishments.  The applicant never corrected his conduct during his many second chances and he ultimately ended up with an appropriately administered UOTHC discharge.

4.  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.



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      _______ _   _______   ___
               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)                                         AR20080016153



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ABCMR Record of Proceedings (cont)                                         AR20080016153



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