IN THE CASE OF:	

		BOARD DATE:	      3 February 2009

		DOCKET NUMBER:  AR20080018209 


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.

2.  The applicant states, in effect, that he went absent without leave (AWOL) because he was passed over for mandatory promotions and many times he was denied overseas requests.  He contends that his discharge hinders his employment opportunities, that he is currently enrolled in a drug and alcohol program at the Department of Veterans Affairs (DVA) and he wants to finish the program, and that he wants to be a productive citizen again.    

3.  The applicant provides 20 character reference letters 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 enlisted on 28 March 1967 for a period of 3 years.  He successfully completed basic combat training, advanced individual training, and basic airborne training.  He was awarded military occupational specialty 63B (wheel vehicle mechanic).   

3.  On 11 March 1968, nonjudicial punishment was imposed against the applicant for being AWOL from 2 March 1968 to 3 March 1968.  His punishment consisted of a reduction to E-2, a fine, restriction, and extra duty.  

4.  On 12 March 1968, nonjudicial punishment was imposed against the applicant for using a military vehicle for an unauthorized purpose, violating uniform policy, violating a pass policy, and breaking restriction.  His punishment consisted of a reduction to E-1, a fine, restriction, and extra duty.  

5.  On 11 October 1968, in accordance with his pleas, the applicant was convicted by a special court-martial of being AWOL from 1 April 1968 to 29 May 1968, from 4 June 1968 to 8 June 1968, and from 16 June 1968 to 18 September 1968.  He was sentenced to be confined at hard labor for 4 months and to forfeit $73 pay per month for 4 months.  On 11 October 1968, the convening authority approved the sentence.  

6.  On 8 April 1969, in accordance with his pleas, the applicant was convicted by a special court-martial of being AWOL from 22 December 1968 to 21 January 1969 and from 29 January 1969 to 9 March 1969.  He was sentenced to be confined at hard labor for 6 months and to forfeit $73 pay per month for 6 months.  On 8 April 1969, the convening authority approved the sentence.  

7.  The applicant went AWOL on 21 August 1969 and returned to military control on 21 September 1969.  He went AWOL on 29 September 1969 and returned to military control on 30 September 1969.  He went AWOL on 1 October 1969 and returned to military control on 30 January 1970.  He went AWOL again on 
12 February 1970 and returned to military control on 22 June 1974.  On 10 July 1974, charges were preferred against the applicant for the AWOL periods.  

8.  On 16 July 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 he had been working most of the time he was AWOL, that when he was apprehended he had a good job, and that his employer was holding this job for him. 

9.  On 5 August 1974, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 

10.  Accordingly, the applicant was discharged with an undesirable discharge on 
13 August 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, 7 months, and 14 days of creditable active service with 2097 days of lost time due to AWOL and confinement.  

11.  In support of his claim, the applicant provided 20 character reference letters from relatives and friends.  They attest that the applicant is reliable, responsible, thoughtful, honest, a competent worker, and a hard worker.  Some letters comment that the applicant should be allowed to complete the DVA treatment program. 

12.  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.

13.  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. 

14.  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.  

15.  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 character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

2.  A discharge is not upgraded for the purpose of obtaining employment opportunities or for obtaining DVA benefits.

3.  The applicant’s record of service included two nonjudicial punishments, two special court-martial convictions, and 2097 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or 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.




      _______ _   _______   ___
               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)                                         AR20080018209





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ABCMR Record of Proceedings (cont)                                         AR20080018209



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