IN THE CASE OF:
BOARD DATE: 4 September 2008
DOCKET NUMBER: AR20080010830
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 that his undesirable discharge be upgraded.
2. The applicant states that he did not go absent without leave (AWOL) for 180 days.
3. The applicant provides no additional evidence in support of his application.
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 applicants 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 applicants 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 on 22 September 1972 for a period of 3 years. He successfully completed basic combat training and on the job training in military occupational specialty 36K (Wireman).
3. On 4 December 1972, nonjudicial punishment was imposed against the applicant for failure to repair. His punishment consisted of a forfeiture of pay, restriction, and extra duty.
4. On 1 February 1973, nonjudicial punishment was imposed against the applicant for failure to repair. His punishment consisted of extra duty.
5. On 18 June 1973, nonjudicial punishment was imposed against the applicant for failure to repair. His punishment consisted of extra duty.
6. Records show the applicant went AWOL on 1 November 1973 and he surrendered on 27 February 1974.
7. The facts and circumstances surrounding the applicants discharge are not contained in the available records. However, his DD Form 214 (Report of Separation from Active Duty) shows that he was discharged with an undesirable discharge on 1 May 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. He had served a total of 1 year, 3 months, and 11 days of creditable active service with 119 days of lost time due to AWOL.
8. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge 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. At the time, an undesirable discharge was normally considered appropriate.
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 members service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record supports the applicants contention that he did not go AWOL for 180 days. Evidence of record shows that he went AWOL on 1 November 1973 and he surrendered on 27 February 1974, a total of 119 days.
2. In the absence of evidence to the contrary, it must be presumed that the applicants separation was administratively correct and in conformance with applicable regulations. Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service. As a result, there is no basis for granting the applicant's request.
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.
________xxxx_____________
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) AR20080010830
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ABCMR Record of Proceedings (cont) AR20080010830
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