IN THE CASE OF:	

		BOARD DATE:	  21 April 2009

		DOCKET NUMBER:  AR20090000830 


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, an upgrade of his discharge.

2.  The applicant states that he feels that his discharge is unjust.  He was young and immature at the time and departed his unit in an absent without leave (AWOL) status due to his mother’s illness.  However, he has since matured and learned from his past mistake.  He also states that as a result of the characterization of his service, he has suffered for years and currently has health problems.

3.  The applicant provides a letter of support, dated 2 December 2008, from his minister in support of his request.

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 was born on 3 December 1954 and enlisted in the Regular Army at 17 years of age for a period of 3 years on 3 December 1971.  He completed basic combat and advanced individual training and was awarded military occupational specialty 71B (Clerk).  The highest rank/grade the applicant attained during his military service was private (PV1)/E-1.

3.  The applicant’s records further show he was awarded the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor, significant achievement, or service warranting special recognition during his military service.

4.  On 7 April 1972, the applicant departed his unit in an AWOL status.  He returned to military control on 1 May 1972.

5.  On 10 May 1972, the applicant pled guilty at a summary court-martial to one specification of being AWOL during the period on or about 8 April 1972 through on or about 1 May 1972.  The court sentenced him to confinement at hard labor for 20 days, a forfeiture of $75.00 pay, and reduction to PV1/E-1.  The sentence was adjudged and approved on 10 May 1972.

6.  On 6 June 1972, the applicant departed his Fort Dix, NJ, unit in an AWOL status again and was subsequently dropped from the Army rolls on 15 June 1972.  He remained in this status until he was apprehended by civil authorities and returned to military control at Fort Benning, GA, on 18 July 1972.

7.  On 18 July 1972, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 6 June 1972 through on or about 18 July 1972.

8.  On 28 July 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

9.  In his request for discharge, the applicant indicated that he acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

10.  On 7 August 1972, the applicant's immediate commander recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate and remarked that the health and welfare of the applicant’s family coupled with financial problems were the stated reasons for the applicant’s unauthorized absence.

11.  On 8 August 1972, the applicant’s senior commander also recommended approval and the issuance of an Undesirable Discharge Certificate.  He further remarked that he personally interviewed the applicant and that during the interview the applicant stated that he considered his mother’s health and conditions at home such that he did not feel he could complete his enlistment and that he desired to be discharged.

12.  On 14 August 1972, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced the lowest enlisted grade.  On 24 August 1972, the applicant was accordingly discharged.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he was discharged for the good of the service with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 6 months of creditable active military service and had 82 days of lost time.

13.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitations.

14.  The applicant submitted a letter of support, dated 2 December 2008, from his minister in which the minister comments on the applicant’s dedication, loyalty, and character.

15.  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 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

16.  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.

17.  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 his discharge should be upgraded.

2.  The evidence of record shows that the applicant was 17 years of age at the time he enlisted and committed his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Furthermore, there is no evidence in the applicant's records, and the applicant did not provide substantiating evidence, that shows his repeated patterns of misconduct and indiscipline were the result of his age.

3.  The evidence of record shows that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant consulted with counsel and was advised of the contemplated trial by court-martial for his offenses.  Only then did he voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.


4.  There is no evidence in the available records, nor did the applicant provide documentation, that would warrant an upgrade of his discharge.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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 did not submit evidence that would satisfy that requirement.

5.  Based on his record of indiscipline, the applicant's 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, the applicant is not entitled to either 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)                                         AR20090000830



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ABCMR Record of Proceedings (cont)                                         AR20090000830



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