RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 February 2008
      DOCKET NUMBER:  AR20070014510


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. John G. Heck                  |     |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 discharge under other than honorable
conditions be upgraded to a general discharge under honorable conditions.

2.  The applicant states, in his 1981 application to the Army Discharge
Review Board (ADRB) for reconsideration (which was not considered due to a
misunderstanding on the applicant’s part), that due to circumstances that
came about in the past few years he wished his discharge to be upgraded.
He also stated that when he applied for his chapter 10 discharge he was
told it would be automatically reviewed in six months and, with only absent
without leave (AWOL) charges, his discharge should be upgraded.  He knew he
was wrong and accepted the punishment.  He stated that he should at least
receive the same treatment as those who deserted and left the country and
received complete amnesty.

3.  The applicant provides his 1981 ADRB application which included his DD
Form 214 (Armed Forces of the United States Report of Transfer or
Discharge); a Veterans Administration Form 23-22 (Appointment of Veterans
Service Organization as Claimant’s Representative); a letter from the
Clerk, Superior Court, General Court of Justice, Lincoln County, NC; and a
letter of support.

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 was inducted into the Army on 8 April 1968.

3.  On 24 October 1968, the applicant was convicted by a special court-
martial  of three specifications of AWOL, from on or about 1 to on or about
23 July 1968; from on or about 5 to on or about 16 August 1968; and from on
or about              5 September to on or about 7 October 1968.  He was
sentenced to be confined at hard labor for 5 months (suspended for 5
months) and to forfeit $68.00 pay per month for 5 months.  Orders dated 18
February 1969 vacated the unexecuted portion of the sentence to confinement
at hard labor.

4.  The court-martial charge sheet is not available.

5.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he was
AWOL from 7 December 1968 through 6 February 1969; in confinement from
7 February through 30 April 1969; AWOL from 1 May through 3 June 1969; and
confined on 4 June 1969.

6.  On 6 June 1969, 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 in lieu of trial by court-
martial.  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 did not submit a statement in his own behalf.

7.  On 28 July 1969, the appropriate authority approved the applicant’s
request and directed he receive an Undesirable Discharge.

8.  On 5 August 1969, the applicant completed a separation physical and was
found qualified for separation.

9.  On 8 August 1969, 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 6 months and 23
days of creditable active service and had 278 days of lost time.

10.  On 30 June 1971, the ADRB denied the applicant’s request for an
upgraded discharge.

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 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 may be submitted at any time after charges have been preferred
and 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.

12.  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.

13.  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.  The applicant acknowledged that he was wrong and stated that he
accepted the punishment.  However, although the applicant was given
clemency in the form of a suspended sentence to confinement, he departed
AWOL again in less than two months after his court-martial imposed that
sentence to confinement.

3.  Considering the applicant’s numerous instances of AWOL, there is an
insufficient basis that would warrant upgrading his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__lds___  __lmd___  __jgh___  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.




                                  __Linda D. Simmons__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070014510                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20080226                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19690808                                |
|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.                      |                                        |


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