RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  28 February 2008
	DOCKET NUMBER:  AR20070015652 


	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.


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	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.

2.  The applicant states that he was unjustly given a less than honorable discharge.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and 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 enlisted in the Regular Army on 11 February 1971 for a period of two years.  He was assigned to Fort Knox, Kentucky for basic combat training. 

3.  On 28 May 1971, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) on two separate occasions from 22 March 1971 to 2 May 1971 and from 6 May 1971 to 16 May 1971.  His punishment consisted of a forfeiture of $67.00 pay for 2 months and restriction for 60 days (restriction was suspended for 2 months).  

4.  On 8 February 1972, charges were preferred against the applicant for being AWOL on three separate occasions from 6 May 1971 to 20 May 1971, from 6 June 1971 to 9 July 1971, and from 14 July 1971 to 3 February 1972.

5.  On 14 February 1972, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Department of Veterans Affairs if an undesirable discharge was issued.  He submitted statements in his own behalf.  

6.  In support of his chapter 10 proceedings, the applicant stated, in effect, that he entered the Army in February 1971.  He did not complete basic combat training and advanced individual training and he did not plan on doing so.  He stated the reasons for being AWOL as his fiancée leaving him after being engaged for three years; a racial disturbance at Fort Riley, Kansas; and he did not like the Army life.  

7.  On 7 March 1972, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 with issuance of an Undesirable Discharge Certificate.

8.  On 9 March 1972, the applicant was discharged from active duty under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an undesirable discharge.  He had completed 3 months and 3 days of active military service with 295 days of lost time due to AWOL.

9.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

10.  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.  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.

11.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

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.

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's record of service shows he received one Article 15 for being AWOL for 53 days.  He was later charged for being AWOL for a total of 242 days.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for an upgrade to an honorable or general discharge.

3.  There is no evidence of record which indicates the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting the applicant's request.  

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.



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          CHAIRPERSON


INDEX

CASE ID
AR20070015652
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080228
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19720309
DISCHARGE AUTHORITY
AR635-200,chapter 10 . . . . .  
DISCHARGE REASON
For the good of the service
BOARD DECISION
deny
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.0000
2.

3.

4.

5.

6.