IN THE CASE OF:	

		BOARD DATE:	  19 February 2009

		DOCKET NUMBER:  AR20080018164 


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 discharge under other than honorable conditions be upgraded.

2.  The applicant states that he was a good Soldier prior to being stationed in Alaska where he began drinking heavily and got into trouble.  He adds that when he witnessed a crime, the person committing the crime saw him.  In fear for his life, he requested reassignment.  When his request was denied, he started going absent without leave (AWOL).

3.  The applicant provides no additional documentary evidence in support of this 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 records show he enlisted in the Regular Army on 
27 July 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 62F (crane shovel operator).  On 23 December 1968 he reenlisted for four years.  The highest rank he attained while serving on active duty was specialist four (SP4)/pay grade E-4.

3.  The available records do not show any significant acts of achievement or valor during his military service.  

4.  Available evidence shows the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on
19 January 1970 for being AWOL from 8 January to 12 January 1970.  His punishment included reduction to Private (PV2)/E-2 and extra duty for 30 days.

5.  The applicant also accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 3 February 1970 for being AWOL from 14 January to 16 January 1970 and for disobeying a lawful command from a superior commissioned officer on 27 January 1970.  His punishment included forfeiture of $34.00 (suspended for 30 days) and extra duty and restriction for 14 days.

6.  On 18 December 1970, the applicant was informed that special-court martial charges were preferred against him for being AWOL from 1 July to 28 September 1970, 5 October to 7 December 1970, and 8 December to 14 December 1970; and for escaping from lawful custody on 8 December 1970.

7.  In addition to time lost such as shown above, the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he had additional lost time during the periods 24 November to 23 December 1969, 17 March, 31 March to 6 April 1970, 5 October 1970 to 3 February 1971, and 9 March to 11 March 1971.

8.  On an undated DA Form 2496 (Disposition Form), subject: Request for Discharge for the Good of the Service, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10 (for the good of the service – in lieu of court-martial).  In his voluntary request for discharge, the applicant 
acknowledged that he had not been subject to coercion with respect to his request for discharge and that he had been advised of the implications that were attached to it.

9.  The applicant acknowledged that he understood that if his request for discharge was accepted, he may be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He further acknowledged he understood that he would be ineligible for many or all Army benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He acknowledged that prior to completing this request he had consulted with counsel who fully advised him of the nature of his rights under the Uniform Code of Military Justice.

10.  The separation authority approved the applicant's request for discharge for the good of the service and ordered that an Undesirable Discharge Certificate be issued.

11.  Accordingly, on 11 March 1971, the applicant was discharged with an undesirable discharge, characterized as under conditions other than honorable, by reason of for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  The DD Form 214 the applicant was issued confirms he completed a total of 2 years, 10 months, and 28 days of total active service with 259 days of lost time due to being AWOL and confinement.  This document further shows that the applicant was issued a DD Form 258A (Undesirable Discharge Certificate).

12.  On 27 September 1973, the Army Discharge Review Board denied the applicant's request for a discharge upgrade to an honorable discharge.

13.  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.

14.  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.  

15.  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 records show that he had 259 days of lost time due to being AWOL and confinement.  The applicant was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10.  In order to be discharged under chapter 10, the applicant admitted guilt and requested discharge in lieu of court-martial.

2.  Based on the applicant's record of indiscipline, his 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 the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's contention that he was in fear for his life is noted.  However, there is no evidence to corroborate this contention.

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)                                         AR20080018164



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ABCMR Record of Proceedings (cont)                                         AR20080018164



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