IN THE CASE OF:	  

	BOARD DATE:	 
	DOCKET NUMBER:  AR20080005286 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge be upgraded to honorable.

2.  The applicant states, in effect, he believes his undesirable discharge (UD), characterized as under other than honorable conditions, should be upgraded due to the passage of time and because he was not in the right frame of mind at that time.  He also states that he did not ask what he should do and was not told what he should do.  He further states, in effect, that he did not receive a copy of his DD Form 214 (Report of Separation from Active Duty) and did not know to send for it until recently.

3.  The applicant also states that while in Vietnam, he was going through some bad time in his family life back in the States and after his mother died, he had to come home and then go back.  He could not get it all together, he saw life as it was, and he did not like it.   When he returned to the States, his family life did not get any better, he was drinking heavily, and did not care about anything.  He was angry and confused at the time.  He could not get along with anyone and was depressed.  His brother saw what he was going through and talked him into leaving New York and coming to South Carolina.  He was still drinking, but after he met some people in South Carolina and went into the ministry, he stopped drinking and now he takes one day at a time.



4.  In support of his application, the applicant provides copies of medical progress notes, two character reference letters, and a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers requests and statements to the applicant and provided no additional documentation in support of the applicant's 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 military records show he enlisted in the Regular Army, in pay grade E-1, on 31 July 1962, for 6 years.  He completed basic and advanced training and was awarded military occupational specialty 112, Heavy Weapons Infantryman.  He was promoted to grade E-3 on 12 April 1963.

3.  The applicant was separated from active duty on 9 January 1964, for the purpose of immediate reenlistment.  He reenlisted for 6 years in the Regular Army on 10 January 1964.

4.  The applicant was reported absent without leave (AWOL) on 28 November 1964 and dropped from the rolls of his organization on 27 December 1964.  He was apprehended by the Federal Bureau of Investigations (FBI) on 25 January 1965 and returned to military control.  

5.  On 8 April 1965, the applicant was convicted by special court-martial of AWOL from 28 November 1964 to 25 January 1965.  He was sentenced to confinement at hard labor for three months (suspended for three months), 
forfeiture of $430.00 pay per month for three months, and reduction to pay grade E-1.  The sentence was adjudged on 8 April 1965 and approved on 20 April 1965.

6.  The applicant was reduced to pay grade E-1 on 20 April 1965.  He was again advanced to pay grade E-2 on 20 May 1965 and to pay grade E-3 on 26 September 1965.  He was promoted to pay grade E-6 on 6 January 1969.

7.  The applicant was again reported AWOL on 17 November 1969 and was returned to military control on 21 November 1969.  He was reported AWOL again on 22 November 1969 and returned to military control on 25 November 1969.  The applicant was reported AWOL for the third time on 7 December 1969 and was dropped from the rolls of his organization on 8 December 1969.

8.  In a letter, dated 8 December 1969, the applicant's wife was advised of his AWOL and that he had been administratively classified as a deserter from the Army.  

9.  The applicant was apprehended by the FBI on 10 November 1975 and was returned to military control on the same date.  

10.  On 13 November 1975, a Charge Sheet (DD Form 458) was prepared by the Commander, Company A, US Army Personnel Control Facility, US Army Training Center and Fort Dix.  The applicant was charged with one specification of AWOL from 7 December 1969 to 10 November 1975.

11.  On 14 November 1975, after consulting with counsel, the applicant 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 charges had been preferred against him under the Uniform Code of Military Justice, which authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he was making the request of his own free will and had not been coerced whatsoever by any person.  He further acknowledged that he had been fully advised of his rights and that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate and as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Veteran's Administration under both Federal and State law.  The applicant waived his rights and elected not to submit a statement in his own behalf.

12.  On 5 December 1975, the applicant's unit commander and the Personnel Control Facility Commander recommended approval of the applicant's request and recommended an Undesirable Discharge Certificate be furnished.  

13.  On 9 December 1975, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that an Undesirable Discharge Certificate be issued and that the applicant be reduced to pay grade E-1. 

14.  The applicant was discharged on 19 December 1975, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, in lieu of court-martial, and issued an Undesirable Discharge Certificate. He was credited with 6 years and 7 days net active service this period; and
1 year, 5 months, and 25 days prior active service, totaling 7 years, 6 months, and 2 days total active service.  He was also credited with 4,292 days lost time due to AWOL.

15.  On 1 April 1985, the Army Discharge Review Board (ADRB) denied the applicant's petition for an upgrade of his discharge.

16.  The applicant submits a copy of his medical progress notes that show on 11 December 2007, he underwent a suicide risk assessment.   He also submits two character reference letters attesting to his post-service duties as an assistant pastor and that he has changed.  

17.  Army Regulation 635-200, in effect at the time, 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 includes a punitive discharge could, at any time after the charges had been preferred, could submit a request for discharge for the good of the service, in lieu of trial by court-martial.  At that time, an undesirable discharge was normally considered appropriate.  

18.  Army Regulation 635-200, paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  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 inappropriate.

19.  Army Regulation 635-200, paragraph 3-7b, also 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge to honorable.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.  

2.  The applicant’s contentions have been noted; however, based on the available evidence, there is no basis for the upgrade of his discharge to a fully honorable discharge.  It appears that the applicant resorted to short periods of AWOL and then a very lengthy period of AWOL as a means of addressing his problems.  The evidence also shows the applicant voluntarily requested discharge in lieu of facing a court-martial.  The applicant waived his opportunity to appear before a special court-martial to prove his innocence if he felt he was being wrongfully charged or that he was being treated unfairly.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge or even a general, under honorable conditions, discharge.  The applicant has submitted neither probative evidence nor a convincing argument to show that he is now deserving of a fully honorable discharge. 

3.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 
The characterization of service for this type of discharge is normally UOTHC and the evidence shows the applicant was aware of that prior to being discharged.  The separation authority could have directed a general discharge if such a discharge were merited by the Soldier's overall record; however, the evidence shows the separation authority decided he did not merit a general discharge after considering the applicant's record and offense.

4.  Given the above, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a fully honorable discharge.  Additionally, the applicant is advised that the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge based upon the passage of time.  

5.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his undesirable discharge.

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.



	___________x____________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005286



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ABCMR Record of Proceedings (cont)                                         AR20080005286


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