IN THE CASE OF:	 

		BOARD DATE:	  30 April 2009

		DOCKET NUMBER:  AR20080019270 


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 under other than honorable conditions discharge be upgraded.

2.  The applicant states that he lived a sheltered life and he was 17 years of age when he enlisted in the military.  He was assigned at Fort Carson, Colorado.  The applicant states that the barracks he lived in was inspected twice weekly.  During a morning formation, he was informed by his commander to report to the battalion commander.

3.  The applicant states that his battalion commander informed him that he was going to receive a field grade Article 15 for drugs found hidden in the ceiling tiles of his assigned room after an unannounced inspection.  The applicant states that he was horrified of the possibility of receiving a court-martial and being sent to jail so he just got in his car and drove away.

4.  The applicant states after realizing that he made a mistake he turned himself in to his commander.  A few days later, he had a visit from a Captain who told him that if he did not take the under other than honorable conditions discharge, he would be sent directly to Leavenworth for 20 years.  Not knowing any better or having the opportunity to consult with counsel, civilian or military, he opted to take the discharge for fear of a lengthy prison sentence.  

5.  The applicant states that he has been through some rough times and is in dire need of medical attention and care.  Due to his discharge, he is not allowed to use the Department of Veterans Affairs (DVA) benefits.
6.  The applicant provides his DD Form 214 (Report of Separation from Active Duty), with the period ending 16 July 1975 and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 
19 November 2008.

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 August 1974 for a 3 year term of service.  He successfully completed basic training and AIT.  He was awarded military occupational specialty 12F (Combat Engineer Vehicle Driver).

3.  Evidence of record shows that the applicant was absent without leave (AWOL) for the periods 15 April 1975 through 20 April 1975 and 22 April 1975 through 29 May 1975.

4.  The applicant's court-martial charge sheet is not available.

5.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 
214 shows that he was discharged on 16 July 1975 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) by reason of in lieu of trial by court-martial with an undesirable discharge and service characterized as under other than honorable conditions.  The applicant completed 9 months and 21 days of creditable active service of his 3 year term of service with 44 days of lost time due to being AWOL.

6.  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 request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. 
At the time, an undesirable discharge was normally considered appropriate.

7.  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.

8.  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 contends that at the time he was young and did not have the opportunity to consult with counsel private or military.  Records show that he was 17 years, 5 months, and 18 days of age at the time his active service began and 18 years, 4 months, and 21 days of age at the time of his discharge.  Many Soldiers of similar age and experience as the applicant successfully completed their enlistment without incident.  The applicant has not shown that his age was a mitigating factor in his offence and discharge.

2.  The applicant contends that he was not given the opportunity to consult with counsel during his separation process.  There is no evidence in the applicant's service records and the applicant has provided no evidence that supports this contention.  Therefore, there is no basis for this argument.

3.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulations and without procedural errors that would jeopardize his rights.  Therefore, it is concluded that the characterization of the applicant’s discharge was proper and equitable.

4.  The applicant's records show that he had two instances of AWOL.  He had completed 9 months and 21 days of service on his 3-year term of service before his separation with a total of 44 days of lost time due to being AWOL.   Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or a general discharge.

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)                                         AR20080019270



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ABCMR Record of Proceedings (cont)                                         AR20080019270



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