IN THE CASE OF:	  

		BOARD DATE:	  21 OCTOBER 2008

		DOCKET NUMBER:  AR20080010321 


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 1977 undesirable discharge be upgraded to general discharge.  

2.  The applicant states, in effect, that he went absent without leave (AWOL) to see his newborn child and upon his return he was discharged.  He would like the Board to review the circumstances surrounding the discharge.  He also states that as he recalls he went AWOL for roughly 5 days when his first child was born. He had asked for ordinary leave for just a few days, but was denied.  He had just returned from training at Fort Polk, Louisiana.  The applicant states that he was born in Puerto Rico and that as a member of his culture, he was expected to return home for the birth of his child and his family was on him to come home.  He believes he would make a different decision today, but back then it seemed like the correct thing to do.  He had just reenlisted for 4 years and this was how he was going to finance his leave back to Puerto Rico.  He knows there was a way to take reenlistment leave, but he was denied by his commander.  Culturally, he is a Taino Indian and his commander did not take into consideration any of his cultural background when denying his leave request.  He knows he was wrong to go AWOL, but he believes his commander could have approved the leave and avoided all this trouble.  

3.  The applicant further states that he never received a DD Form 214 (Report of Separation from Active Duty) for his period of service from 1975 to 1977.  He received an honorable discharge for the period of service from 6 January 1965 to 29 December 1966.  He is attempting to obtain benefits from the Department of Veterans Affairs (VA) based on his first period of service, but the discharge in 1977 is an obstacle.  He never understood why the Army set him up for an immediate discharge rather than issue an Article 15.  He was a good Soldier and loved the service.  His family has a long history of serving in the US military and he had planned to make the Army a career.

4.  In support of his application, the applicant provides copies of his 1966 DD Form 214 and an article on the Taino Indians culture.  

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 was inducted into the Army of the United States, in pay grade E-1, on 6 January 1965.  He completed basic and advanced training and was awarded military occupational specialty 11C, indirect fire infantryman.  He was advanced to pay grade E-2 on 12 November 1966.  

3.  On 3 September 1966, the applicant was punished under Article 15, Uniform Code of Military Justice (UMCJ), for absenting himself from his unit from 
22 to 24 August 1966.  His punishment included a forfeiture of $24.00 and extra duty for 14 days.

4.  The applicant was honorably discharged from active duty, in pay grade E-2, on 29 December 1966, for Early Separation of Overseas Returnee.  He was transferred to the United States Army Reserve (USAR) Control Group (Annual Training).  He was credited with completing 1 year, 11 months, and 22 days of total active service and he had 2 days of lost time due to being AWOL.

5.  The applicant was honorably discharged from the USAR at the expiration of his term of service on 5 January 1971.

6.  The applicant reenlisted in the USAR on 16 July 1975, for 6 years and reenlisted in the Regular Army, in pay grade E-2, on 1 October 1975, for 4 years.

7.  On 1 April 1976, the applicant was reported AWOL and dropped from the rolls of his organization on 4 May 1976.  He was returned to military control on 30 September 1976.  

8.  On 4 October 1976, a Charge Sheet (DA Form 458) was prepared by the Commander, Company A, US Army Personnel Control Facility, US Army Training Center and Fort Dix, Fort Dix, New Jersey.  The applicant was charged with one specification of being AWOL from 1 April 1976 to 30 September 1976.

9.  On 8 October 1976, the applicant, after consulting with counsel, voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, Chapter 10.  He stated that he was making the request of his own free will and had not been subjected to any coercion whatsoever.  He acknowledged that he was guilty of the charge(s) against him and could receive a bad conduct or dishonorable discharge.  He also stated he did not desire further rehabilitation and had no further desire to perform military service.  He elected not to have his case heard before a board of officers, elected not to submit a statement in his own behalf, and acknowledged that he understood the effects of being issued an undesirable discharge.

10.  On 8 and 12 October 1976, the applicant’s chain of command recommended approval of his request and further recommended that he be separated with an undesirable discharge.  

11.  On 18 October 1976, the appropriate separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, Chapter 10, and directed the issuance of an Undesirable Discharge Certificate and reduction to pay grade E-1.  

12.  The applicant was discharged, in pay grade E-1, on 29 October 1976, and issued an Undesirable Discharge Certificate.  He was credited with completing 
7 months net active service this period and he had 182 days of lost time due to being AWOL.

13.  There is no evidence the applicant was honorably separated for the purpose of immediate reenlistment during this period of service.

14.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations for an upgrade of his discharge.

15.  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 submit 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.  

16.  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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge to general discharge.  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 considered; however, based on the available evidence, there is no basis for the upgrade of his discharge.  The applicant had a very lengthy period of AWOL and he 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 being treated unfairly.  His misconduct diminished the quality of his service below that meriting a general 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 an undesirable discharge 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.  The applicant has submitted neither probative evidence nor a convincing argument to show that his discharge was unjust or that he deserves an upgrade now.  He also has not provided evidence sufficient to mitigate the character of his discharge.  In the absence of evidence to the contrary, the character of the discharge is commensurate with his overall record during his second period of military service.  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 solely for the purpose of an applicant qualifying for benefits administered by the VA.  

5.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

6.  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.

7.  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)                                         AR20080010321



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ABCMR Record of Proceedings (cont)                                         AR20080010321


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