IN THE CASE OF:	  

		BOARD DATE:	        5 February 2009

		DOCKET NUMBER:  AR20080018211 


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 that his undesirable discharge be upgraded to general under honorable conditions or honorable.  

2.  The applicant states that he was going through difficult times when his grandfather passed away.  He alleges that he was not granted leave.  

3.  The applicant provides no additional documents 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 12 January 1973 for a period of three years.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 36C (lineman).  His highest grade attained was private, E-2.  

3.  On 16 July 1973, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) form 9 July 1973 to 16 July 1973.  

4.  On 3 August 1973 and 17 August 1973, he accepted NJP under Article 15, UCMJ for being AWOL from 31 July 1973 to 2 August 1973 and from 13 August 1973 to 16 August 1973.

5.  On 4 August 1973, the applicant was convicted, pursuant to his plea, by a special court-martial of being AWOL from 31 August 1973 to 6 September 1973.  He was sentenced to a forfeiture of $200.00 pay for 2 months and confinement at hard labor for 30 days.  

6.  On 21 January 1974 and 3 April 1974, the applicant accepted NJP under Article 15, UCMJ for being absent from his unit on 25 March 1974 and for being AWOL from 15 January 1974 to 18 January 1974.  

7.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) on his DA Form 20 (Enlisted Qualification Record) shows he was AWOL from 3 May 1974 to 11 August 1974 and confined from 30 August 1974 to 21 October 1974.  These periods of lost time are recorded in item 27 (Remarks) on his DD Form 214 (Report of Separation from Active Duty).  

8.  The applicant’s discharge packet is not available.  However, his DD Form 214 shows he was discharged on 8 November 1974 under the provisions of Army Regulation 635-200, chapter 10 for the good of the service-in lieu of trial by 
court-martial with issuance of an undesirable-under other than honorable conditions discharge.  He completed 1 year, 3 months, and 10 days of creditable active service with 197 days of lost time due to AWOL and confinement.  

9.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

10.  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.

11.  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.  

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  However, there is no evidence of record to substantiate the applicant's claims.

2.  In the absence of the applicant's chapter 10 discharge proceedings, the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, is presumed to have been administratively correct and in conformance with applicable regulations.  

3.  The applicant’s service records show he received five Article 15s and one special court-martial.  His DD Form 214 shows 197 days of lost time.  As a result, his service record was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for an upgrade to a general or honorable discharge.  

4.  Although the applicant's discharge packet is not available, it is presumed the separation authority appropriately directed issuance of an undesirable discharge based on his overall record of service.

5.  There is no evidence submitted or evidence of record which shows the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for an upgrade of his discharge to honorable or general under honorable conditions.  

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)                                         AR20080018211



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ABCMR Record of Proceedings (cont)                                         AR20080018211



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