RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 October 2007
	DOCKET NUMBER:  AR20070007447 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

x

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge be upgraded.  

2.  The applicant states he was informed that his discharge could be upgraded after holding a job for 6 months after discharge.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 in the Regular Army on 6 October 1972.  He completed basic training.  He completed on-the-job training and was awarded military occupational specialty 12A (Pioneer).

3.  On 7 February 1973, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from on or about 18 January 1973 to on or about 28 January 1973.

4.  The applicant departed AWOL on or about 23 March 1973 and returned to military control on or about 31 July 1973. 

5.  On 13 August 1973, the applicant completed a mental status evaluation.  He was found to have no significant mental illness, to be mentally responsible, to be able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

6.  On 13 August 1973, the applicant completed a separation physical and was found qualified for separation.

7.  The applicant’s complete court-martial charge sheet is not available.

8.  On 9 August 1973, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He was advised of the effects of an undesirable discharge and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted a statement in his own behalf, stating he could not stand Army life.  He liked to come and go as he felt.

9.  In an endorsement dated 29 August 1973, the commander of the Personnel Control Facility, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC, stated he interviewed the applicant, who stated he was aware of the consequences of an Undesirable Discharge Certificate.  The applicant stated his AWOL was caused by his inability to adjust and his desire to get out of the Army.  He had no intentions of trying to adapt to performing military duties and would go AWOL again if his request for discharge was not approved.

10.  In an endorsement dated 7 September 1973, the brigade-level commander stated the applicant was interviewed on 5 September 1973 concerning his request for discharge.  The applicant stated he was aware of the nature of the proceedings and the consequences of an Undesirable Discharge Certificate; however, he still desired elimination from military service.  The applicant had stated that he enjoyed his training; however, he did not like duty at Fort Hood, TX.  His main reason was that too many people were telling him what to do.  He stated he could not adapt to the restrictions posed by Amy life in that he had been on his own since the age of 15 and was used to coming and going as he please.  He further stated that he could never adjust to military life and would continue to go AWOL regardless of the consequences.

11.  On 19 September 1973, the appropriate authority approved the applicant’s request and directed he be given an Undesirable Discharge Certificate.

12.  On 25 September 1973, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, with an undesirable discharge and a characterization of service of under other than honorable conditions.  He had completed 7 months and 11 days of creditable active service and had 129 days of lost time.

13.  On 10 December 1979, the Army Discharge Review Board denied the applicant’s request for an upgraded discharge.

14.  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.  The request must include the individual’s admission of guilt.  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.  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.

16.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

DISCUSSION AND CONCLUSIONS:

1.  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 court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  Considering the applicant had two periods of AWOL, one for a period of over 4 months, the characterization of his discharge as under other than honorable conditions was and still is appropriate.

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




INDEX

CASE ID
AR20070007447
SUFFIX

RECON

DATE BOARDED
20071025
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19730925
DISCHARGE AUTHORITY
AR 635-200, ch 10
DISCHARGE REASON
A70.00
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.00
2.

3.

4.

5.

6.