IN THE CASE OF:	  

		BOARD DATE:	        18 February 2009

		DOCKET NUMBER:  AR20080016708 


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 discharge.

2.  The applicant states that before his discharge from active duty, he became ill and had extreme shortness of breath.  He also experienced bouts of depression. He further states that he was eventually hospitalized and diagnosed with sarcoidosis [medically defined as a chronic disease of unknown cause that is characterized by the formation of nodules resembling true tubercles especially in the lymph nodes, lungs, bones, and skin – also called Boeck's disease, Boeck's sarcoid, and lupus pernio].  After his release he had a hard time performing his duties due to fatigue and depression.  Eventually the burden was too tremendous to continue.  The applicant continues before his illness he took pride in his job and was honored to be serving his country.

3.  The applicant states since his release, he has graduated from the Texas State Institute with a diploma and certificate in 2-way communication.  He has 10 years of experience as a TV and VCR bench technician.  Also for the last decade, he has been in the property management field starting from maintenance technician and working his way to being a building manager of three properties.

4.  The applicant provides two letters of support from fellow associates.




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 on 6 June 1972 for a 3-year term of service.  He successfully completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63A (Mechanical Maintenance Helper).

3.  A DD Form 458 (Charge Sheet), dated 7 November 1973, shows court-martial charges were preferred against the applicant for being absent without leave (AWOL) for the period 14 May 1973 through 25 October 1973.

4.  On 9 November 1973, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

5.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He waived the right to provide statements on his own behalf.

6.  On 27 November 1973, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be issued an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 19 December 1973 the applicant was discharged with an undesirable discharge.  He completed a total of 1 year and 21 days of creditable active service with 176 days of lost time due to AWOL.
7.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 9 November 1976, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB unanimously voted that the applicant's discharge was proper and equitable.  He reapplied to the ADRB for reconsideration.  On 11 July 1978, the ADRB again unanimously voted that his discharge was both proper and equitable.  

8.  The applicant provided two letters of support from fellow associates.  The authors both stated that they have known the applicant for many years.  They stated, in effect, that the applicant is a helpful, caring, and reliable person.  He is well respected by the tenants of his building and the community.

9.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. At the time, an undesirable discharge was normally considered appropriate.

10.  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.

11.  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 prior to his discharge from active duty he was  diagnosed with sarcoidosis and that he had a hard time performing his duties after his release from the hospital.  However, there is no evidence in his available record that shows sarcoidosis was the cause of his AWOL.  Furthermore, evidence of record shows that he voluntarily requested to be separated from the military in lieu of court-martial.  Therefore, there is no basis for this argument.  
2.  The applicant's good post-service achievements since his discharge are acknowledged.  However, good post-service achievements alone are not a basis for upgrading a discharge and, upon review, the applicant's good post-service achievements are not sufficient to mitigate his indiscipline in the Army.

3.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulations and without procedural errors that would jeopardize his rights.  Therefore, the characterization of the applicant’s discharge was both proper and equitable.

4.  The applicant's records show that he had one instance of a lengthy AWOL.  He had completed 1 year and 21 days of service on his 3-year term of service before his separation with a total of 176 days of lost time due to being AWOL.   Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or a 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)                                         AR20080016708



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ABCMR Record of Proceedings (cont)                                         AR20080016708



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