IN THE CASE OF:	  

		BOARD DATE:	  18 February 2009

		DOCKET NUMBER:  AR20080018325 


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 (UD) be upgraded to honorable or general. 

2.  The applicant states, in effect, that he did not know his discharge could be upgraded.  He also states that he was discharged during the Vietnam War.   

3.  In support of his application, the applicant provides a completed DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) and his DD Form 214 (Armed Forces of the United States Report or Transfer or Discharge).

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 he enlisted in the Regular Army in pay grade E-1 on 9 October 1970, for 3 years.  He completed basic and advanced training and was awarded military occupational specialty 76P, Stock Control and Accounting Specialist.  He was promoted to pay grade E-4 on 14 June 1971.

3.  The applicant was reported absent without leave (AWOL) on 1 July 1971 and returned to military control on 12 July 1971.  He was again reported AWOL on 12 July 1971 and dropped from the rolls of his organization on 14 July 1971.  He surrendered and was returned to military control on 6 August 1971.

4.  On 6 August 1971, a Charge Sheet (DD Form 458) was prepared by the Commander, Personnel Control Facility, Headquarters Command, US Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma.  The applicant was charged with two specifications of being AWOL from 1 July through 12 July 1971 and from 12 July through 6 August 1971.

5.  On 20 August 1971, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to the request for discharge.  He also acknowledged that he could be discharged under other than honorable conditions and furnished a UD Certificate, and as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected to submit a statement in his own behalf.

6.  In his statement, the applicant states, in effect, that he hated the Army since he joined.  He expected the Army to get better after basic training, but it got worse for him.  He almost had a nervous breakdown twice, and mental hygiene never tried to help him.  He was AWOL for 36 days and he would not have returned, but he left his car at Fort Sill.  He would not go back to active duty no matter what.  He joined the Army when he was 17 years old and did not know what he was getting into.

7.  On 26 August 1971, the applicant's unit commander recommended approval of the applicant's request and recommended the issuance of a UD Certificate. 

8.  On 27 August 1971, the applicant's Headquarters Command commander recommended approval of the applicant's request and recommended the issuance of a UD Certificate.  

9.  On 13 September 1971, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that a UD Certificate be issued and that the applicant be reduced to pay grade E-1.

10.  The applicant was discharged on 16 September 1971, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial with his service characterized as under conditions other than honorable.  He was credited with 8 months and 22 days of net active service.

11.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations for an upgrade of his discharge.

12.  Army Regulation 635-200 (Enlisted Separation), in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, 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 UD was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other characterization would be inappropriate.

14.  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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

2.  The evidence shows the applicant was charged with two specifications of being AWOL.  Upon his return from his second period of AWOL, he voluntarily requested discharge in lieu of facing a court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  The applicant also acknowledged he could be discharged under conditions other than honorable and furnished a UD Certificate.

3.  Contrary to the applicant's contentions, he has provided no evidence or a convincing argument to show his discharge should be upgraded, and his military records contain no evidence which would entitle him to an upgrade of his discharge. The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

5.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  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)                                         AR20080018325



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ABCMR Record of Proceedings (cont)                                         AR20080018325


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