IN THE CASE OF:	  

		BOARD DATE:	  23 December 2008

		DOCKET NUMBER:  AR20080017495 


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 (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he was not afforded the opportunity for drug abuse rehabilitation.   

3.  The applicant provides no documentary evidence 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's record shows that he enlisted in the Regular Army (RA) and  entered active duty on 26 June 1969.  He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) and private/E-2 (PV2) is the highest rank he attained while serving on active duty.

3.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  His Enlisted Qualification Record (DA Form 20) shows, in item 44 (Time Lost), that he accrued 414 days of time lost during two absent without leave (AWOL) periods from 6 January to 18 February 1970 and from 14 April 1970 through 18 May 1971.  

4.  On 10 March 1970, a Special Court-Martial (SPCM) found the applicant guilty, contrary to his plea, of violating Articles 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from 6 January 1970 until 18 February 1970.  The resultant approved sentence was a forfeiture of $82.00 a month for 6 months, reduction to private/E-1 (PV1) and 30 days restriction.

5.  On 14 April 1970, the applicant departed AWOL and on 25 July 1970, he was dropped from the rolls (DFR) of the organization.  He remained AWOL until 
18 May 1971, at which time court-martial charges were preferred against him for being AWOL.  

6.  On 1 July 1971, the applicant the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Chapter 10, Army Regulation 635-200.  

7.  In his request for discharge, he acknowledged his understanding that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he understood that he could encounter substantial prejudice in civilian life by reason of a UD.

8.  The applicant provided a statement with his discharge request in which he stated that his periods of AWOL and his civil arrest, conviction and incarceration during one of these AWOL periods clearly showed his inability to adjust to military life.  He further indicated that it was his desire to be discharged and to not return to duty or jail.  He concluded by indicating his discharge would benefit both him and the Army. 
9.  On 14 July 1971, the brigade commander recommended approval of the applicant’s discharge and noted the applicant had committed frequent incidents of a discreditable nature with civilian and military authorities.  He also indicated that the applicant had no potential for rehabilitation and stated that minimal rehabilitation effect or any ultimate benefit to the Army or society would be expected from punishment.

10.  On 15 July 1971, the separation authority approved the applicant's request for discharge and directed the applicant be discharged under the provisions of chapter 10, Army Regulation 635-200, and that he receive a UD.  On 22 July 1971, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant upon his separation shows he completed a total of 11 months and 9 days of creditable active military service and that he accrued 414 days of time lost due to AWOL.

11.  The applicant's record is void of any indication that he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations 

12.  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 separation authority may issue a general under honorable conditions discharge (GD) or HD if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's discharge, the regulation provided for the issuance of a UD.

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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

14.  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 contentions that his UD should be upgraded to an HD because he was not provided rehabilitation for his drug use was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was AWOL for 414 days, an offense punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, he voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.

3.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition, and he voluntarily requested administrative discharge to avoid a court-martial that could have resulted in his receiving a punitive discharge.  As a result, his record did not support the issue of a GD or HD by the separation authority at the time, nor does it support an upgrade at this late date.  Therefore, given the applicant’s discharge accurately reflects his overall record of undistinguished service, there is an insufficient evidentiary basis to support granting the requested relief in this case.

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.




      _______ _ 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)                                         AR20080017495



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ABCMR Record of Proceedings (cont)                                         AR20080017495



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