IN THE CASE OF:	  

		BOARD DATE:	      3 March 2009

		DOCKET NUMBER:  AR20080018658 


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 (UD) be upgraded to a general discharge (GD).

2.  The applicant states, in effect, that he accepted a UD rather than a court-martial but feels he should have been given an "Article 31" due to having only 
4 months left on his service obligation when he went absent without leave (AWOL).  This was the only time he was AWOL.  His actions have haunted him for 32 years and he wishes he could change the actions that he took at age 19.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation).

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 9 September 1974, completed training, and was awarded the military occupational specialty 11E (Armor Crewman).

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 13 November 1975 for sleeping on duty as a sentinel; and 

	b.  on 11 February 1976 for being AWOL from 19 through 30 January 1976, and from 1 through 3 February 1976.

4.  The applicant was AWOL from 30 July to 20 October 1976 until he was apprehended by civilian authorities.  On 5 November 1976, court-martial charges were preferred against the applicant for this period of AWOL. 

5.  On 9 November 1976, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200, chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that if the request was accepted that he could receive a discharge under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UD and that there is no automatic upgrading or review of a less than honorable discharge.  He also acknowledged that he was guilty of the charge(s) (or a lesser included charge) against him.  He waived his right to a hearing.  He also waived his right to make a statement on his own behalf and to be represented by counsel.

6.  On 12 November 1976, the discharge authority approved the discharge and directed that the applicant be reduced to the lowest enlisted grade and furnished an Undesirable Discharge Certificate.  

7.  The applicant was discharged with a UD on 24 November 1976.  He had completed 1 year, 11 months, and 9 days of creditable service with 98 days of lost time.  The applicant had no prior service, no foreign service, and he was only awarded the Sharpshooter Marksmanship Qualification Badge (M-16 Rifle). 



8.  He received two enlisted evaluations wherein he was described and rated as average.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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.  Included in the Chapter 10 requirements at that time was a requirement that the applicant admit guilt to the stipulated offenses under the UCMJ or lesser-included charges.  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 UD. 

10.  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.

11.  The Manual for Courts-Martial (MCM) provides the rules that govern the procedures and punishments in all courts-martial and, whenever expressly provided, preliminary, supplementary, and appellate procedures and activities.  The Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.  The MCM provides in Subchapter VI:

   a.  Section 831, Article 31 (Compulsory Self-Incrimination Prohibited) that no person subject to this chapter may compel any person to incriminate himself or to answer any questions when the answer may tend to incriminate him.

   b.  Subchapter VI, Section 832, Article 32 of the MCM provides that no charge or specification may be referred to a general court-martial for trial until a through and impartial investigation of all the matters set forth therein has been made.  This investigation shall include an inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and recommendation as to the disposition which should be made of the case in the interest of justice and discipline



DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, that he accepted a UD rather than a court-martial but feels he should have been given an "Article 31" due to having only 
4 months left on his service obligation when he went AWOL.  This was the only time he was AWOL.  His actions have haunted him for 32 years and he wishes he could change the actions that he took at age 19.

2.  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, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

4.  Although the applicant stated that he should have been offered an Article 31 the applicable article under the MCM would have been an Article 32 investigation and hearing.

5.  Since he voluntarily requested a discharge in lieu of trial by court-martial and admitted that he was guilty of the charge of AWOL, an Article 32 investigation was not warranted.  

6.  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)                                         AR20080018658



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ABCMR Record of Proceedings (cont)                                         AR20080018658



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