IN THE CASE OF:	  

		BOARD DATE:	        05 FEBRUARY 2009

		DOCKET NUMBER:  AR20080017933 


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 or a general discharge.

2.  The applicant states that he believes that he did not do as badly as others and they received general or honorable discharges.  He states that he also believes that if someone is twice willing to fight for our country instead of running away, then that individual deserves better than what he received.

3.  The applicant provides no additional documentation 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.  On 20 January 1971, the applicant was inducted into the Army of the United States in Coral Gables, Florida.  He successfully completed his training as a heavy vehicle driver.  He was advanced to the pay grade of E-2 on 20 May 1971.

3.  Nonjudicial Punishment (NJP) was imposed against the applicant on 8 June 1971 for being absent without leave (AWOL) from 4 June 1971 until 7 June 1971. His punishment consisted of a reduction to the pay grade of E-1 (suspended for 90 days), a forfeiture of pay in the amount of $34.00 (suspended for 90 days), restriction to the company area for 14 days, and extra duty for 7 days.

4.  The applicant's records show that he was advanced to the pay grade of E-3 on 22 July 1971.

5.  On 19 November 1971, the applicant was convicted pursuant to his plea by a special court-martial of being AWOL from 2 October 1971 until on or about 25 October 1971 and from 31 October 1971 until on or about 14 November 1971. He was sentenced to confinement at hard labor for 1 1/2 months and a reduction to the pay grade of E-1.

6.  On 10 February 1972, NJP was imposed against the applicant for being AWOL from his unit from 4 February 1972 until on or about 7 February 1972.  His punishment consisted of a forfeiture of pay in the amount of $57.00 (suspended for 90 days), restriction for 14 days, and extra duty for 14 days.

7.  The applicant went AWOL again on 7 March 1972 and he remained absent in desertion until he was apprehended by civil authorities and returned to military control on 28 June 1972.

8.  On 18 July 1972, the applicant was notified that charges were pending against him for being AWOL from 7 March 1972 until on or about 28 June 1972.  He acknowledged receipt of the notification on 20 July 1972 and, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial.

9.  The applicant's commanding officer (CO) recommended approval of the request for discharge on 21 September 1972.  In his recommendation, the CO stated that the applicant was aware of the consequences of receiving an Undesirable Discharge Certificate; however, he desired to be eliminated from the service under the provisions of Army Regulation 635-200, chapter 10.  According to the CO, the applicant stated that his AWOLs were caused by what he termed to be family problems, as his wife was pregnant.  The applicant stated he went on leave and "just didn't come back."  In his recommendation, the CO stated that the applicant had gone AWOL on three previous occasions for which he received NJPs and a special court-martial.  According to the CO, the applicant stated that he would go AWOL again if he was not released and that he desired to leave the service permanently.

10.  The appropriate authority approved the request for discharge on 27 September 1972 and recommended the issuance of an Undesirable Discharge Certificate.  Accordingly, on 11 October 1972, 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.  He had completed 1 year, 2 months, and 28 days of total active service and he was furnished an Undesirable Discharge Certificate.

11.  A review of the available records does not show that the applicant ever applied to the Army Discharge Review Board 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.  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.

13.  Paragraph 3-7 of Army Regulation 635-200 (Enlisted Personnel) 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.  

14.  Paragraph 3-7 also 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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's contentions have been noted.  However, his contentions are not substantiated by the evidence of record.  His records show that he had NJP imposed against him twice and he was convicted by a special court-martial.  Yet he continued to go AWOL, and according to his CO, he declared that he would go AWOL again if he was not permanently released from the service.

4.  The applicant's records show that he went AWOL on five different occasions.  As a result of his acts of indiscipline and considering his overall record of service and the nature of his offenses, it does not appear that the type of discharge that he received is too harsh.

5.  In order to justify correction of a military record the applicant must show 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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080017933



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017933



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1