IN THE CASE OF:	  

		BOARD DATE:	        29 January 2009

		DOCKET NUMBER:  AR20080016211 


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 his undesirable discharge (UD) be upgraded to an honorable Discharge (HD).

2.  The applicant states there is no error in his records, but it has been more than 30 years since his discharge and he is hopeful it can be changed.

3.  The applicant provides a copy of a Discharge Report from Mercy Hospital – South (Charlotte, NC), dated 1 September 2008, showing he was diagnosed with End-Stage Liver Disease, Child-Pugh Class C.  

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 3 years on 11 September 1967. Almost immediately, he became a habitual AWOL (absent without leave) Soldier.  He completed basic combat training on or about 28 March 1968, but it appears he never completed advanced individual training (AIT) for military occupational specialty (MOS) 94B (Cook).

3.  The applicant had numerous periods of AWOL and confinement totaling 660 days.  The record shows he was convicted by one summary and two special courts-martial for his AWOLs.

4.  On 1 November 1969, court-martial charges were preferred against the applicant for escaping from lawful confinement in the Fort Dix, NJ, Post Stockade on or about 10 May 1969, and for being AWOL from on or about 10 May 1969 to on or about 8 August 1969.

5.  On 29 October 1969, the applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial.  He stated that he acknowledged he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge, and that he did not desire further rehabilitation nor had any desire for further military service.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.  He declined to submit a statement in his own behalf.

6.  On 3 November 1969, the applicant’s commander recommended approval of the applicant’s request for discharge with an UD.  On 20 November 1969, the Commanding General, Fort Dix, approved the applicant’s request for discharge and directed he be issued an UD.  On 28 November 1969, he was discharged with an UD under the provisions of Army Regulation 635-200, chapter 10, by reason of for the good of the service in lieu of trial by court-martial.

7.  The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he served 5 months and 6 days of his 3-year enlistment and that he had 660 days of lost time due to AWOL and confinement.

8.  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 is normally considered appropriate.  However, at the time of the applicant’s separation the regulation provided for the issuance of an undesirable discharge.

9.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s terminal illness has been noted, as well as the 39-year passage of time since his discharge.  Although the applicant's situation is unfortunate, it does not provide a reason for upgrading his discharge.

2.  The applicant enlisted for 3 years.  Almost immediately he became a disciplinary problem.  He was convicted of AWOL by three courts-martial and he was pending trial for additional offenses.

3.  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, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

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


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.


															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)                                         AR20080016211



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ABCMR Record of Proceedings (cont)                                         AR20080016211



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