IN THE CASE OF:	  

		BOARD DATE:	        07 OCTOBER 2008

		DOCKET NUMBER:  AR20080011528 


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 to a general discharge.

2.  The applicant states that he joined the Army after his 17th birthday and that like many of his friends and neighbors, he wanted to serve his country and to be on his own.  He states that he was stationed at Fort Knox performing the duties of a telephone lineman and that he was in a company where he did Charge of Quarters (CQ) every day.  He states that he had been in the Army for a little over a year when a very personal and devastating event occurred that affected his life then and even to this day.  He states that he did not know where to turn, so he went absent without leave (AWOL) and he headed home.  

3.  The applicant states that while he was AWOL, he got a job and that he never explained what happened to anyone.  He states that he was arrested and was returned to Fort Leonard Wood where he met with a chaplain and shared with him the events that had happened.  He states the chaplain told him that he would assist him in getting discharged and that he signed the paperwork stating that he would be leaving the Army with an undesirable discharge.  He states that he was told by the chaplain that he should not be concerned because his discharge would be upgraded in 3 years.  The applicant concludes by stating that he fully trusted the chaplain and that he just wanted the incident to go away.  He states that since leaving the Army, he has tried to put the incident behind him forever.


4.  The applicant provides, in support of his application, a copy of an Application for Review of Discharge from the Armed forces of the United States (DD Form 293); a copy of his Report of Transfer or Discharge (DD Form 214); a self-authored letter addressed to the Discharge Review Board, dated 14 May 2008; notification from the Richland County Veterans Service Commission, of the submission of his Application for Correction of Military Records (DD Form 149), DD Form 214 and DD Form 293; and a copy of a letter, addressed to him dated 27 May 2008, from the Army Review Board Agency, Chief, Support Division, St. Louis.

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.  On 1 December 1972, the applicant enlisted in the Army in Detroit, Michigan, for 3 years, in the pay grade of E-1.  He successfully completed his training as a lineman.

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 29 January 1973, for failure to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay and extra duty.

4.  On 12 April 1973, NJP was imposed against the applicant for being AWOL from 2 April 1973 until 8 April 1973.  His punishment consisted of a forfeiture of pay and extra duty.

5.  The applicant had NJP imposed against him again on 26 April 1973, for being absent from his appointed place of duty.  His punishment consisted of a forfeiture of pay and extra duty.



6.  The applicant went AWOL on 2 October 1973 and he remained absent in desertion until he was apprehended by civil authorities on 14 December 1973.  He escaped from custody on 18 December 1973 and he remained absent until he was apprehended by civil authorities and placed in confinement on 1 January 1974.

7.  On 9 January 1974, the applicant was notified that charges were pending against him for being AWOL.  He acknowledged receipt of the notification on 11 January 1974 and, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  In his request for discharge, the applicant acknowledged that he understood that if his request was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  

8.  Along with his request for discharge, the applicant submitted a statement in his own behalf in which he stated that he had been AWOL three times and that he had three “ART 15s.”  He stated that of his parents had just been released from the hospital about 3 weeks before he was apprehended.  He stated that at his last duty station, “they” would not let him go to school to get his GED [General Educational Development] diploma.  He stated that if he was sent back to duty, he would just go AWOL again.

9.  The appropriate authority approved the request for discharge on 17 January 1974 and the issuance of an undesirable discharge was directed.  Accordingly, on 22 January 1974, the applicant was discharged, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 10 months and 16 days of total active service and he had approximately 98 days of lost time due to AWOL and confinement.  He was furnished an Undesirable Discharge Certificate.

10.  The available records fail to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's contentions have been noted.  However, his contentions are not substantiated by the evidence of record.  There is no evidence in the available record, nor has he submitted any evidence to show that anything devastating ever happened to him while he was in the Army.  There is also no evidence in the available records to show that he was told by a chaplain that his discharge would be upgraded in 3 years.  His records show that he went AWOL because he wanted to go to school to get his GED diploma and according to him; he was not allowed to do so.

4.  The applicant’s records show that he completed 10 months and 16 days of total active service and that he had approximately 93 days of lost time due to AWOL and confinement.  He also threatened to continue to go AWOL if he was returned to duty.  Considering the nature of his offenses, it appears that his undesirable discharge properly reflects his overall record of service.

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 has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080011528



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ABCMR Record of Proceedings (cont)                                         AR20080011528



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