BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090014507 


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 upgrade of his discharge to honorable or general.

2.  The applicant states his wife was using drugs and she and his baby daughter were living with a motorcycle gang.  He was denied leave to straighten out the situation.  His drill sergeant would not authorize emergency leave.  He felt he had to go home for the safety of his child.  He became depressed and lost his focus.  It began to get him into trouble.  His military lawyer told him that if he did not have a criminal record for 10 years, his discharge could be upgraded to honorable.

3.  The applicant provides no additional documentation in support of his case.

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 on 16 August 1974.  His enlistment documents do not list any spouse or dependents.

3.  He completed training in military occupational specialty 11B as an infantryman.  He was advanced to pay grade E-2 and assigned to 1st Battalion, 21st Infantry, 25th Infantry Division, in Hawaii.

4.  The applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for absence without leave (AWOL) from 16 through 20 January 1975.

5.  On 19 February 1975, charges were preferred against the applicant for breaking restriction on 10 February 1975, for larceny of clothes from another Soldier worth $58.00, and for absence from his appointed place of duty.

6.  He 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.  Subsequently, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He attached a statement saying that he just did not fit in.  He had tried to get discharged for unsuitability and failed.  He did not mention anything about his wife or child.

8.  The officers in the applicant's chain of command recommended that he be separated with an under other than honorable conditions discharge.

9.  The discharge authority approved the applicant's request and directed the issuance of an under other than honorable conditions discharge.

10.  The applicant was discharged on 1 May 1975 under the provisions of Army Regulation 635-200, chapter 10.  He had completed 8 months and 16 days of creditable active service.
11.  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.

12.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for breaking restriction each and every one of the applicant's offenses.

13.  There is no indication that the applicant applied to the Army Discharge Review Board during its 15-year period of eligibility.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.  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 states his wife and baby daughter were living with a motorcycle gang.  He was denied leave to get the situation straightened out.  His drill sergeant would not authorize emergency leave.  He felt he had to go home for the safety of his child.

2.  Notwithstanding the applicant's assertion that he was AWOL because his daughter was in danger, there is no evidence of record to support this claim.  Furthermore, he clearly stated at the time that he felt he did not fit in and simply wanted to get out of the Army.  Lastly, he was not even discharged for AWOL, but for breaking restriction and larceny from another Soldier.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  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.



      ____________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)                                         AR20090014507



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ABCMR Record of Proceedings (cont)                                         AR20090014507



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