RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 January 2008
	DOCKET NUMBER:  AR20070010469 


	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

Ms. Rene’ R. Parker 

Analyst

The following members, a quorum, were present:


Mr. Frank Jones

Chairperson

Ms. LaVerne Douglas

Member

Mr. Michael Flynn

Member

	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, in effect, that his undesirable discharge be upgraded. 

2.  The applicant states that during his time in service, his mother’s illness was life-threatening.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 record shows he was inducted into the Army of the United States on 17 February 1969.  He was trained in and awarded military occupational specialty 11E (Armor Crewman).  

3.  On 2 March 1970 charges were preferred against the applicant for being absent without leave (AWOL) from his unit from on or about 7 July 1969 until on or about 24 February 1970.

4.  On 2 April 1970 the applicant consulted with counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200.

5.  The applicant signed his request for discharge which showed that he was making the request under his own free will; that he was afforded the opportunity to speak with counsel; that he may be furnished an Undesirable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be 

ineligible for many or all Veterans Administration benefits; and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected not to submit a statement on his behalf.

6.  On 7 April 1970 the captain in command of the Holding Company, Special Processing Detachment, Fort Riley, Kansas, recommended approval of the applicant’s request for discharge for the good of the service.  He recommended that the applicant be issued an Undesirable Discharge Certificate. 

7.  On 7 April 1970 the major in command of the Special Processing Detachment, Fort Riley, Kansas, recommended approval of the applicant’s request for discharge for the good of the service.  He recommended that the applicant be issued an Undesirable Discharge Certificate. 

8.  On 24 April 1970 the major general in command of Fort Riley, Kansas approved the applicant’s discharge under the provisions of chapter 10 of Army Regulation 635-200 with the issuance of an Undesirable Discharge Certificate.  

9.  The applicant's DD Form 214 shows that he was discharged with a characterization of service as under conditions other than honorable on 8 May 1970.  The applicant had completed 7 months and 4 days of creditable service with 233 days of lost time due to AWOL.

10.  There is no indication in the record that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within the 15-year statute of limitations of that board.  

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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.  At the time, an undesirable discharge was normally considered appropriate. 

12.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  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.   Evidence of record shows the applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.  

2.  While the circumstances surrounding the illness of the applicant’s mother is unfortunate, there is no evidence to indicate that the applicant sought other avenues, such as emergency leave or a compassionate reassignment, to resolve his problems prior to going AWOL.  Absent such evidence, regularity must be presumed in this case

3.  The applicant's 233 days of lost time due to AWOL clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, he is not entitled to a discharge upgrade.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__FJ____  __LD  ___  ___MF __  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.




______Frank Jones_________
          CHAIRPERSON




INDEX

CASE ID
AR20070010469
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080108
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.00
2.

3.

4.

5.

6.