IN THE CASE OF:	  

		BOARD DATE:	  27 January 2009

		DOCKET NUMBER:  AR20080017050 


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, be upgraded to a general discharge.

2.  The applicant states, in effect, that he is requesting the change for medical purposes.

3.  The applicant provides a DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States; a letter of explanation for his request; a letter from the Michigan Veterans Foundation, Detroit Veterans Center; a reference letter from the Michigan Certification Board for Addiction Professionals; a copy of a certificate showing the applicant completed counselor training at the Baptist Pastors Council Substance Abuse Education and Prevention Program; and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 20 May 1970, 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 24 February 1969.  He successfully completed basic combat training at Fort Knox, Kentucky, advanced individual training at Fort Leonard Wood, Missouri, and airborne training at Fort Benning, Georgia.  He was awarded military occupational specialty (MOS) 62B (Engineer Equipment Repairman).  He was advanced to the pay grade of E-3 on 12 August 1969.  This was the highest grade that he held.

3.  On 25 August 1969, the applicant received non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failure to obey a lawful regulation by being outside the designated pass limits on 21 August 1969.  His punishment consisted of extra duty and restriction for 14 days, to run concurrently.  The applicant did not appeal this punishment.

4.  The applicant was absent without leave (AWOL) from Company B, 307th Engineer Battalion, Fort Bragg, North Carolina from 13 November 1969 until he was returned to military control at Fort Riley, Kansas on 18 March 1970.  He was assigned to the Special Processing Detachment (SPD), Fort Riley, Kansas on 
19 March 1970.  

5.  On 24 March 1970, charges were preferred against the applicant for the above period of AWOL.

6.  The applicant consulted with legal counsel, and on 20 April 1970 he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  The applicant acknowledged that he understood he might encounter substantial prejudice in civilian life and he might be ineligible for many or all benefits administered by the Veterans Administration if a discharge characterized as under other than honorable conditions were issued.  He was advised that he could submit a statement in his own behalf; however, he declined to do so.

7.  Both the Commander, SPD, Fort Riley and the Commander of the Holding Company recommended approval of the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, based on the fact that 

the applicant’s military record indicated that retention was neither practical nor desirable.  They both recommended that the applicant receive an undesirable discharge.

8.  The separation authority approved the applicant's request and directed that he be discharged under the provisions of Army Regulation 635-200, chapter 10.  It was also directed that the applicant be furnished an Undesirable Discharge Certificate and that he be reduced to the lowest enlisted grade.  

9.  The evidence shows the applicant was discharged on 20 May 1970, in pay grade E-1.  He had completed 10 months and 21 days of total active service.  The applicant also had 126 days of lost time due to being AWOL.  The applicant’s service was characterized as under other than honorable conditions.  

10.  The available evidence shows the applicant submitted a petition in May 1976 to the Army Discharge Review Board (ADRB) for an upgrade of his discharge; however, it was denied on 24 June 1976.  The ADRB determined that the applicant was properly discharged and advised him to submit a request to the ABCMR for review and final determination.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations)  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 characterized as 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 certificate.

12.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, 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 admitted guilt to the stipulated offense(s) under the UCMJ.

2.  The applicant's records show that he had 126 days of lost time due to being AWOL.  Based on this record of indiscipline, 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 a general or an honorable discharge

3.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.

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)                                         AR20080017050



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ABCMR Record of Proceedings (cont)                                         AR20080017050



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