IN THE CASE OF:	  

		BOARD DATE:	       26 FEBRUARY 2009

		DOCKET NUMBER:  AR20080017172 


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.

2.  The applicant states, in effect, that he was convicted of a felony 5 weeks after he enlisted in the Army and that he was in the county jail for 1 year.  He claims that Army officials told him he would receive a discharge for his felony conviction in the mail; however, he never received it.  When he was released from the county jail he went home.  Two years later he was picked up and returned to military control.  He contends that he was placed in the stockade and told that if he did not take the undesirable discharge he would have to go to trial and then prison.  He states that he was 19 years old at the time and did not want to go to prison.  He further states that he would like to receive medical treatment.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) in support of his application.

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 27 February 1973 for a period of 4 years.

3.  While in basic combat training, the applicant went absent without leave (AWOL) on 23 April 1973 and returned to military control on 1 May 1973.  He went AWOL on 7 May 1973 and returned to military control on 18 May 1973.  He went AWOL on 19 June 1973 and returned to military control on 21 June 1973.  He went AWOL again on 28 June 1973.

4.  Records show the applicant was arrested by civilian authorities on 17 September 1973 for armed robbery.  He served 1 year at Clay County Jail, Green Cove Springs, Florida, and was released on 18 June 1974 without notification to military authorities.

5.  On 5 December 1975, the applicant surrendered to military authorities.

6.  On 9 January 1976, charges were preferred against the applicant for the AWOL periods.  Trial by special court-martial was recommended.

7.  On 10 December 1975, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs), and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

8.  On 6 February 1976, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge.

9.  Accordingly, the applicant was discharged with an undesirable discharge on 1 March 1976 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served 6 months and 24 days of creditable active service with 911 days of lost time.

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

11.  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.  At the time, an undesirable discharge was normally considered appropriate.

12.  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.

13.  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.  A discharge is not upgraded for the purpose of obtaining Department of Veterans Affairs benefits.

2.  The applicant’s brief record of service included 911 days of lost time.  It appears he also committed a serious civil offense (armed robbery) while in the Army.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

3.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.
 
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)                                         AR20080017172



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ABCMR Record of Proceedings (cont)                                         AR20080017172



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