RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 February 2008
	DOCKET NUMBER:  AR20070011764 


	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

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Ms. Rose M. Lys

Member

Ms. Qawiy A. Sabree

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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states there is no error or injustice, just bad judgment on his behalf which he is terribly ashamed of.  He joined the Army National Guard (ARNG) to get away from his abusive father.  Initially he worked hard, until he got to his unit.  He did not fit in with the clique.  While everyone else was training, he was cleaning pots and pans.  He talked to his command about resolving his situation, but to no avail.  Nothing changed.  After a while, he stopped going to drill, and he was discharged from the ARNG and ordered to active duty.

3.  The applicant states after a while he returned to the military.  He was under the impression that he could stay in the military, but he was told that he would be court-martialed for being absent without leave (AWOL) or he could request to be discharged.  Since then he has lived a constructive life and is a law-abiding citizen.  He has a wonderful wife, with children and grandchildren.  The applicant further states that his children do not know about his past and the shame he has brought upon himself.  He is not looking for benefits, only that his children and grandchildren not find out he was discharged with a less than honorable discharge.  

4.  The applicant provides his DD Form 214 (Report of Separation from Active Duty), with the ending period 28 July 1975.

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 ARNG on 16 March 1972 for a 6-year term of service.  He successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 72C (Central Office Switchboard Operator).

3.  On 29 May 1974, the applicant was discharged from the ARNG for unsatisfactory participation.  He was involuntarily ordered to active duty on 
30 May 1974 to fulfill his remaining military obligation.

4.  A DD Form 458 (Charge Sheet), dated 9 July 1975, shows charges were preferred against the applicant for being AWOL for the period 30 May 
1974 through 18 June 1975.

5.  On 11 July 1975, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an undesirable discharge; that he may be deprived of many or all Army benefits; that he may be ineligible 
for many or all benefits administered by the VA; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge. 

6.  The applicant submitted a statement on his own behalf that stated, in effect, that he joined the ARNG to spite his father.  He didn't appreciate what his parents were doing for him until then.  His attitude worsened when his unit would not let him take off to make plans for his wedding and just for asking they put him on Kitchen Police (KP).  So he said to "heck with it and left and didn't go back."  He further stated his attitude towards the Army changed since returning because he was married for almost two years and had a son with another one on the way.  He had a fine job back home and wanted to be with his family.  The applicant stated that he would rather be a civilian than in the Army.  If his discharge was disapproved, he would take off again and if that wasn't good enough he would go again.

7.  On 16 July 1975, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  He directed that the applicant be issued an undesirable discharge.  On 28 July 1975, the applicant was discharged with a characterization of service of under other than honorable conditions.  The applicant had completed 5 months and 25 days of creditable active service with 384 lost days due to AWOL.  

8.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 8 December 1980, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB unanimously voted that the applicant's discharge was proper and equitable.

9.  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.  At the time, an undesirable discharge was normally considered appropriate.  The regulation currently states that a discharge under other than honorable conditions is normally considered appropriate.

10.  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.

11.  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.  The applicant contends that his discharge should be upgraded to an honorable discharge.  However, records indicate he had a total of 5 months and 25 days of creditable active service with 384 days of lost time due to AWOL.  Based on the applicant’s misconduct his record of service did not meet the regulatory standard of satisfactory service.  In the absence of a record of satisfactory service, the applicant is not entitled to a general or honorable discharge.  

2.  The applicant’s voluntary request for separation under the provisions of chapter 10, Army Regulation 635-200, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  Evidence of record shows that he understood he could be discharged with an undesirable discharge, characterized as under other than honorable conditions.

3.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulation and without procedural errors that would jeopardize his rights.  Therefore, it is concluded that the characterization of the applicant’s discharge was proper and equitable.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__WDP__  __RML__  __QAS __  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.





____William D. Powers__
          CHAIRPERSON




INDEX

CASE ID
AR20070011764
SUFFIX

RECON

DATE BOARDED
7 FEBRUARY 2008
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
110.0300.0000
2.

3.

4.

5.

6.