IN THE CASE OF:	

		BOARD DATE:	  22 January 2009

		DOCKET NUMBER:  AR20080016721 


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 to get away from all of the drugs in his neighborhood.  However, the drug problem was even more prevalent in the Army.  He ran from the problem by going absent without leave (AWOL) and then was worried about returning to military control.  When he finally returned he was not asked anything.  He was placed in the stockade and then discharged.

3.  The applicant does not provide any additional documents in support of his request.

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's military records show that he enlisted in the Regular Army on 8 September 1975, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 52B (power generation equipment operator/mechanic).

3.  The applicant was AWOL from 23 February to 1 March 1976; from 8 March to 7 May 1976; and from 24 May to 21 July 1976.

4.  On 22 July 1976, the applicant was placed in pre-trial confinement.

5.  On 22 July 1976, court-martial charges were preferred against the applicant for being AWOL from 23 February to 2 March 1976, from 8 March to 8 May 1976, and from 24 May to 22 July 1976.

6.  On 28 July 1976, the applicant requested discharge in lieu of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (discharge in-lieu of trial by court-martial).  In that request the applicant acknowledged that he understood that if his request was accepted, he could be given an undesirable discharge.  The applicant's request was countersigned by an officer from the Judge Advocate General Corps who certified that he counseled the applicant on his options and of the ramifications of an undesirable discharge.

7.  The applicant submitted a statement with his request for discharge.  In that statement he said that he was married to a 16-year old woman, she was pregnant, and he believed that it would be best for him to be discharged to be with her.

8.  The applicant's request was approved by the appropriate authority and the applicant was given an Undesirable Discharge Certificate on 27 August 1976.  He had 6 months and 13 days of creditable service and 160 days of time lost due to AWOL.

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.  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.

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 applicant's three periods of AWOL was serious misconduct and certainly warranted an undesirable discharge.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

3.  The applicant has not submitted any evidence to show that he went AWOL because of drug use in the military.  To the contrary, he submitted a statement when he requested discharge that he wanted to be discharged because his
16-year old wife was pregnant.  However, even if the applicant could show he went AWOL because of drug use in the Army, it would not form the basis of granting his request.  A Soldier cannot decide to go AWOL because he does not like his environment.  If there were illegal activities, i.e. drug use, in his unit, he had an obligation to report those activities to the proper authority.

4.  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

___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)                                         AR20080016721



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ABCMR Record of Proceedings (cont)                                         AR20080016721



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