IN THE CASE OF:	  

		BOARD DATE:	  30 October 2008

		DOCKET NUMBER:  AR20080012933 


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 general under honorable conditions.

2.  The applicant states that the adjutant general lied to all of them, saying that the discharges given would change to general discharges with no benefits.  The adjutant general lied to all of them just to get them out of his hair.  He doesn't want any of the benefits, he just wants the general discharge he was promised.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States).

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 enlisted in the Regular Army on 14 May 1971.  His father was deceased and he had a wife and son at the time he enlisted.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 16D (Hawk Missile Crewman).  He was placed on orders for assignment to Vietnam.

3.  On 22 August 1972, the applicant completed a separation physical examination and was found qualified for separation.

4.  On 24 August 1972, court-martial charges were preferred against the applicant charging him with being absent without leave (AWOL) from on or about 7 October 1971 to on or about 14 March 1972, from on or about 10 April 1972 to on or about 15 April 1972, and from on or about 23 April 1972 to on or about 8 August 1972.

5.  Around August 1972, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 
635-200, chapter 10, for the good of the service.  He indicated he understood that, if his request was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He understood that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted a statement in his own behalf.

6.  The applicant stated he had a wife, mother, and two children to support and did not have the time to play Soldier.  He hated the service because it was breaking up his marriage.  He also hated the service because a lot of his friends from his hometown had gone into the Service and never returned because of the war in Asia.  Besides, he could not stand being away from his family and mother.  Ever since his father died, he had only his mother to turn to.

7.  On 29 August 1972, the appropriate authority approved the applicant’s request and directed he be issued an Undesirable Discharge Certificate.

8.  On 13 September 1972, the applicant was discharged in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the 


service with an Undesirable Discharge and a characterization of service of under other than honorable conditions.  He had completed 6 months and 25 days of creditable active service and had 279 days of lost time.

9.  Army Regulation 635-200 (Personnel Separations) 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 characterization of service of under other than honorable conditions is normally considered appropriate.  

10.  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.

11.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record to show that the applicant was promised that his undesirable discharge would be upgraded to a general discharge.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  When the applicant requested discharge under the provisions of Army Regulation 635-200, chapter 10, he indicated that he understood that, if his request was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.

2.  The applicant enlisted in the Regular Army in May 1971 of his own free will and while the war in Vietnam was being waged.  He had a wife and son at the time he enlisted.  It is not reasonable to think he believed that if he had friends who had served in Vietnam that he would have been an exception and would not have served in Vietnam.



3.  Given the applicant's several periods of AWOLs and the circumstances of this case, granting the relief requested is not warranted.

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)                                         AR20080012933



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ABCMR Record of Proceedings (cont)                                         AR20080012933



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