IN THE CASE OF:	  

		BOARD DATE:	        07 MAY 2009

		DOCKET NUMBER:  AR20090001173 


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 his Undesirable Discharge (UD) be upgraded to an Honorable Discharge (HD).

2.  The applicant states he was rushed out of Fort Devens (MA) Stockade and asked to sign his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and told he could leave the Army.  He signed because all he could think about was obtaining drugs.  He states this discharge has ruined his life.  He is sorry and states he is being treated for depression, anxiety, and psychosis.  He adds he was young and “gung-ho,” but could not obey orders.  He requested assignment to Vietnam because he wanted to kill.  He was mentally incompetent and a drug addict.  He pleads for help in changing his life.

3.  The applicant provides no additional information.

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 contain a DD Form 214.  It shows he received a UD.  The authority and reason for discharge are not listed, but his separation program number (SPN) code of 246 indicates he was discharged for the good of the service.  It also shows he enlisted in the Regular Army for 3 years on 2 October 1970 and was discharged on 28 December 1971 with 8 months and 8 days of creditable service.  He also had 199 days of lost time.

3.  The applicant’s records contain a DA Form 188 (Charge Sheet) which shows he was charged with violating Article 86, Uniform Code of Military Justice (UCMJ) by being absent without leave (AWOL):  on or about 4 March 1971 to 27 May 1971; on or about 28 May 1971 to 12 July 1971; and on or about 13 September 1971 to 7 October 1971.  The charges were preferred on 1 December 1971.

4.  The applicant’s records do not contain a separation packet; however, the applicant signed a statement on 16 December 1971 certifying he had been advised his request for discharge for the good of the service had been approved.

5.  During the applicant’s active duty, discharges for the good of the service were accomplished under the provisions of chapter 10, Army Regulation 635-200.  Such discharges were accomplished in lieu of trial by court-martial.  In connection with such a discharge, the applicant would have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, the applicant would have been required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  

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.  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 a UD.


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 his UD should be upgraded to an HD.

2.  The applicant was habitually AWOL; he amassed 199 days of lost time.  Court-martial charges were preferred against him and he apparently requested discharge under the provisions of chapter 10, Army Regulation 635-200, rather than stand trial.

3.  There is no indication the applicant had a drug problem which contributed to his misconduct.  Even if he had had a problem, assistance was available to help him, but there is no indication he ever sought help for a drug problem.

4.  Although the applicant’s complete discharge packet is not available for review, regularity is presumed in the discharge process.  Thus his voluntary request for separation under the provisions of chapter 10, Army Regulation 635-200, 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.  There is no indication the request was made under coercion or duress.

5.  The applicant’s request for a chapter 10 discharge tends to show he wished to avoid the court-martial and the punitive discharge he might have received had he been convicted at trial.


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.




      _______ _ 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)                                         AR20090001173



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ABCMR Record of Proceedings (cont)                                         AR20090001173



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