IN THE CASE OF:	  

		BOARD DATE:	        6 November 2008

		DOCKET NUMBER:  AR20080013528 


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, in effect, that when he was discharged he was told his discharge would be upgraded from undesirable to a general discharge.  He points out that he was young, that he did not get court-martialed, that he served his country to the best of his ability, and that he went absent without leave (AWOL) a couple of times.

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 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 was born on 3 October 1952.  He enlisted in the Regular Army on 20 July 1972 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 63B (wheel vehicle mechanic).  He arrived in Korea on 19 December 1972.   

3.  On 28 February 1973, nonjudicial punishment was imposed against the applicant for being AWOL for 9 hours.  His punishment consisted of a forfeiture of pay.

4.  On 24 August 1973, nonjudicial punishment was imposed against the applicant for disobeying a lawful order.  His punishment consisted of a forfeiture of pay.

5.  The applicant departed Korea on 18 December 1973.

6.  The applicant went AWOL on 8 May 1974 and returned to military control on 
5 August 1974.  On 15 August 1974, charges were preferred against the applicant for the AWOL period.  

7.  On 22 August 1974, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by 
the Veterans Administration (now known as the Department of Veterans Affairs) and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated that the Army messed up his life, that he was having family and financial problems while serving in Korea, and that he went AWOL because he was not doing the Army any good and he needed to straighten things out at home.    

8.  On 29 August 1974, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 

9.  Accordingly, the applicant was discharged with an undesirable discharge on 
3 September 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, 10 months, and 
6 days of creditable active service with 100 days of lost time due to being AWOL.  

10.  On 8 January 1980, the Army Discharge Review Board denied the applicant’s request for a discharge upgrade.

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.  At the time, an undesirable discharge was normally considered appropriate. 

12.  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.

13.  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.  Age is not a sufficiently mitigating factor.  The applicant was almost 20 years old when he enlisted and he successfully completed basic combat training and advanced individual training.    

2.  A discharge upgrade is not automatic.

3.  Since the applicant’s record of service included two nonjudicial punishments and 100 days of lost time, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

4.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.    

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.
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.


      ______ _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)                                         AR20080013528





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ABCMR Record of Proceedings (cont)                                         AR20080013528



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