IN THE CASE OF:	

		BOARD DATE:	  5 February 2009

		DOCKET NUMBER:  AR20080016074 


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 did not provide a statement.  However, a statement of support was submitted on his behalf by a friend who has known him for 36 years.  She states, in effect, that the applicant told her that he was 20 minutes late for muster roll call, that he called his unit but it did not matter, and that he was given an Article 15 and busted to private.  She indicates that as a young man of 20 years, and after having done so well in service, the applicant was devastated over the drop in rank and he lost control and was consumed by anger and went absent without leave (AWOL).  She points out that during that time the applicant’s        18 year old sister and her husband were killed in a car accident, that the applicant was hospitalized for two weeks with spinal meningitis, and that she is not sure of any brain damage but the applicant is one sad case today.  She states that she is very familiar with the lack of counseling available during that period because her husband was just back from Vietnam.  She believes that the applicant should have received some counseling before he was discharged, that the applicant never understood why he could not get a decent job until he found out his discharge was dishonorable/undesirable, and that the applicant is in need of Department of Veterans Affairs (DVA) benefits.  

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty); a 1972 letter of commendation; and a DVA letter, dated 
4 September 2008 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 10 February 1953.  He enlisted in the Regular Army on 31 December 1970 for a period of 3 years.  He successfully completed basic combat training, advanced individual training, and airborne training.  He was awarded military occupational specialty 36C (lineman).   

3.  On 13 December 1973, in accordance with his pleas, the applicant was convicted by a special court-martial of being AWOL from 14 August 1973 to 
4 September 1973 and from 5 September 1973 to 5 November 1973; and for using disrespectful language.  He was sentenced to be confined for 60 days, to forfeit $50 pay per month for 2 months, and to be reduced to E-1.  On 21 January 1974, the convening authority approved the sentence. 

4.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows that he was AWOL from 17 December 1973 to 17 April 1974. 

5.  On or about 29 April 1974, the applicant underwent a separation physical examination and was found to be qualified for separation.

6.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, his DD Form 214 shows that he was discharged with an undesirable discharge on 12 June 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 2 years, 10 months, and 19 days of creditable active service with 205 days of lost time due to being AWOL.

7.  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.

8.  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. 

9.  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 member’s 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.  

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.

DISCUSSION AND CONCLUSIONS:

1.  The contentions provided in the letter of support were considered.  However, evidence of record shows the applicant was convicted by a special court-martial of two specifications of being AWOL (totaling 83 days) and for using disrespectful language, not for being 15 minutes late.  There is no evidence of record to show he was given an Article 15 and reduced to private before he went AWOL.

2.  Age is not a sufficiently mitigating factor.  The applicant was 17 years old when he enlisted and he successfully completed basic combat training, advanced individual training, and airborne training.  In addition, he had served almost 3 years in the Army prior to his special court-martial conviction.    

3.  Although the applicant’s friend contends that he should have received counseling prior to his discharge, evidence of record shows that the applicant was found qualified for separation.  There is also no evidence the applicant sought assistance from his chain of command or chaplain on a way to resolve his problems within established Army procedures prior to going AWOL.  

4.  A discharge is not upgraded for the purpose of obtaining DVA benefits.

5.  In the absence of evidence to the contrary, it must be presumed that the applicant’s 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

___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)                                         AR20080016074



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ABCMR Record of Proceedings (cont)                                         AR20080016074



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