IN THE CASE OF:	  

		BOARD DATE:	  01 July 2009

		DOCKET NUMBER:  AR20090003327 


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, that his undesirable discharge be upgraded to general discharge.  He also requests to personally appear before the Board.

2.  The applicant states that he has no evidence to submit.  He reports that his records concerning his incarceration and court finding have been expunged.  He was very young at the time and does not believe that he was treated properly.

3.  The applicant provides no documentary evidence in support of his application. 

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.  On 17 September 1970, the applicant, at 17 years and 7 months of age, enlisted in the Regular Army for 3 years.  He was assigned to Fort Leonard Wood, Missouri, for one station unit training.  He completed basic combat training and he was then assigned to advanced individual training (AIT) for completion of military occupational specialty (MOS) 64A (Motor Transport Operator).  There is no evidence available showing that he completed AIT.

3.  On 10 December 1970, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) during the period from 7 to 9 December 1970.  The punishment included a forfeiture of $26.00 pay per month for 1 month and 7 days restriction and extra duty.

4.  On 29 January 1971, the applicant accepted NJP for being AWOL during the period from 12 to 17 January 1971.  His punishment included a forfeiture of $30.00 pay per month for 1 month and 7 days of extra duty.

5.  On 12 February 1971, the applicant accepted NJP for being AWOL during the period from 8 to 9 February 1971.  The punishment included 7 days of extra duty.

6.  On 19 March 1971, the applicant accepted NJP for being AWOL during the period from 8 to 15 March 1971.  His punishment included a forfeiture of $60.00 pay per month for 2 months and 45 days of restriction and extra duty.

7.  On 21 July 1971, charges were preferred against the applicant under the provisions of the UCMJ for violation of Article 86, being AWOL, during the period from 8 June to 12 July 1971 (34 days).

8.  On 23 July 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10. 

9.  In his request for discharge, the applicant indicated that he understood that if his request for discharge 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 9 August 1971, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  

11.  The applicant was AWOL from 18 August to 13 September 1971.

12.  On 13 September 1971, the applicant was discharged accordingly.  He had completed a total of 9 months and 11 days of creditable active military service and had accrued 77 days of lost time due to being AWOL.

13.  On 9 June 1983, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

14.  Army Regulation 635-200 (Personnel Separations) 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 an undesirable discharge.

15.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

16.  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.

17.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.   



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was young and not treated properly at the time is not sufficiently mitigating to warrant relief.  The applicant was 17 years and 7 months of age at the time of his enlistment.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation.  There is also no evidence available to indicate improper treatment was involved in the applicant’s case, and the applicant has not offered any evidence or explanation of what this improper treatment may have been. 

2.  The available evidence confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.  

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

4.  The type of discharge and reason therefore were appropriate considering all of the facts of the case.

5.  The applicant’s request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, it appears the evidence of record is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 

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 the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.



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)                                         AR20090003327



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ABCMR Record of Proceedings (cont)                                         AR20090003327



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