RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20080002349 


	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.










The following members, a quorum, were present:














	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 (UD), characterized as under other than honorable conditions (UOTHC), be upgraded to an honorable discharge.

2.  The applicant states, in effect, that after joining the Army and completing basic and advanced training, he did not have any leave for approximately 6 to 8 months.  He was going to marry his girlfriend but went into the service.  While on leave, he discovered his girlfriend was going to marry someone else.  Because of this problem, he stayed home several times and the authorities would come and pick him up and take him back. 

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

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 on 26 January 1971.  He successfully completed basic combat training and advanced individual training at Fort Lewis, Washington.  On completion of his training, he was awarded the military occupational specialty (MOS) 11B, Light Weapons Infantryman.  He was promoted to pay grade E-2 on 25 May 1971.

3.  Charges were preferred against the applicant on 15 October 1971 for being AWOL from 19 to 21 July 1971, from 3 to 25 August 1971, and from 28 to 30 August 1971.

4.  On 18 October 1971, the applicant consulted with 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 acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA) if an undesirable discharge were issued.  He waived his rights and elected to submit a statement in his own behalf; however, his statement is unavailable for review.  

5.  Item 44, of the applicant's DA Form 20 (Enlisted Qualification Record), shows that he was AWOL from 10 November 1971 to 15 February 1972, while he was undergoing discharge processing.

6.  On 13 January 1972, the separation authority approved the applicant's request for discharge and recommended that he be furnished an undesirable discharge.  

7.  On 22 October 1984, the ADRB denied the applicant's petition to upgrade his discharge.

8.  Army Regulation 635-200 set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time, after the charges had been preferred, submit a request for discharge for the good of the service,
in lieu of trial by court-martial.  An undesirable discharge was normally considered appropriate.  

9.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant had established a pattern of misconduct.  He went AWOL on four occasions and charges were preferred against him for three of his AWOLs.  He accumulated a total of 124 days of time lost due to AWOL.  

2.  The applicant's voluntary request for separation, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, appears to have been administratively correct and in conformance with applicable regulations.  There is no indication that the applicant's request for discharge was made under coercion or duress. 

3.  The applicant has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  The applicant's contentions were considered; however, they do not support a change of his UD, characterized as UOTHC. 

5.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge, characterized as UOTHC, to an honorable discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RML__  __GP____  ___SF __  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.




_____R. M. L.___________
          CHAIRPERSON