IN THE CASE OF:	  

		BOARD DATE:	        27 MAY 2009

		DOCKET NUMBER:  AR20090003251 


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.

2.  The applicant states that he was using alcohol excessively and has just been treated.  He further states that he is also being treated for post-traumatic stress disorder (PTSD).  Additionally, he had to undergo alcohol abuse treatment in Germany when he was found drunk on front gate duty.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) and a copy of his divorce decree.

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 military records are not available to the Board for review.  However, the applicant has provided sufficient documents for the Board to conduct a fair and impartial review of this case.

3.  After serving 2 years, 10 months and 23 days of active service, of which 1 year was spent in Vietnam, the applicant reenlisted in the Regular Army on 29 March 1974.  

4.  The facts and circumstances surrounding his administrative discharge are not present in the available records.  However, his DD Form 214 shows that he served in Germany for a period of 3 months and that he went absent without leave (AWOL) from 30 November 1974 through 20 January 1975 (52 days).

5.  On 18 March 1975, he was discharged with an undesirable discharge, characterized as under other than honorable conditions, at Fort Meade, Maryland, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 9 months and 28 days of active service during his current enlistment and had 52 days of lost time due to AWOL.

6.  The divorce decree provided by the applicant indicates that the applicant and his spouse were divorced in the State of Virginia on 16 August 1977.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must indicate that they are submitting the request of their own free will, without coercion from anyone and that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  An undesirable discharge (under other than honorable conditions) was then and still is normally considered appropriate.

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.  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 the aforementioned requirement.

2.  In the absence of evidence to the contrary, it must be presumed that 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 courtmartial, was administratively correct and in conformance with applicable regulations.

3.  Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate under the circumstances.

4.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he chose to voluntarily request a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  

5.  The applicant's contentions and supporting documents have been considered; however, they are not sufficiently mitigating to warrant relief when compared to his undistinguished record of service.  Accordingly, his service simply does not rise to the level of even 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.




      _______ _  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)                                         AR20090003251





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ABCMR Record of Proceedings (cont)                                         AR20090003251



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