RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2008
	DOCKET NUMBER:  AR20080001446 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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.  

2.  The applicant states that his discharge or punishment was too severe.  He alleges that his daughter became ill while he was in Korea and he had serious financial problems which impaired his ability to serve.  Once he improved the conditions at home, he returned [from being absent without leave (AWOL)] to face his punishment.  Since his discharge, he has worked consistently for 35 years with no improper conduct and with no problems in civilian life.  He states he has raised three children and has three grandchildren.  He states that he has never received any kind of state or government assistance until 2007.  He became ill in 2007 and could not continue to work.  As a result, he lost all of his medical, life insurance, and other benefits that had been previously provided.  He states that his conduct and efficiency ratings were very good.  His commanding officer informed him that his military occupational specialty (MOS) would be changed to Motor Pool.  He states that it was hard for Motor Pool sergeants and others to take orders from him.  He states that the entire time he was in-country, he was between two MOSs.  This was very stressful for him at his young age and his rank was private first class.  The applicant also states that all of his resources have been exhausted and he cannot get his medications.  He thought he had a general under honorable conditions discharge.  He applied to the Department of Veterans Affairs for benefits and he was advised to apply for an upgrade to general under honorable conditions.  He contends that he was young and this affected his judgment.

3.  The applicant provides a copy of a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States); his DD Form 214 (Report of Separation from Active Duty); and a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim). 

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 22 August 1973 for a period of two years at the age of 18.  At the completion of basic combat training and advanced individual training, he was awarded MOS 72B (communications center specialist).  He was later reclassified into MOS 11B (infantryman).  He was assigned to Korea on 23 February 1974 and he was advanced to private first class on 16 April 1974.  He departed AWOL on 20 April 1974.

3.  On 8 April 1975, charges were preferred against the applicant for being AWOL from 20 April 1974 to 28 May 1974 and from 10 July 1974 to 26 March 1975.

4.  On an unknown date, 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 VA if an undesirable discharge was issued.  He submitted statements in his own behalf.  

5.  In support of his chapter 10 proceedings, the applicant stated, in effect, that went AWOL because he had family problems and his daughter was very sick.  He tried to work out his problems by not having to go overseas.  When he went overseas, his problems got worse.  His attitude towards the Army changed and he just wanted to get out of the Army.  

6.  On 14 April 1975, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 with issuance of an Undesirable Discharge Certificate.

7.  On 23 April 1975, 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 10 months and 8 days of active military service with 297 days of lost time due to AWOL.

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



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.  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.

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

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'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 was charged with being AWOL for a total of 297 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 a general under honorable conditions discharge.

3.  The applicant’s statements have been carefully reviewed.  However, marital problems are not normally grounds for upgrading a discharge.  There is no evidence the applicant sought assistance from his chain of command, chaplain, or any other community support agencies on a way to resolve his problems within established Army procedures. 


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

XX______  XX______  XX______  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.




                        XX_______
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080001446


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508