IN THE CASE OF:	  

		BOARD DATE:	  5 May 2009

		DOCKET NUMBER:  AR20080019785 


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 changed to an honorable discharge.

2.  The applicant states, in effect, he was not mentally mature enough to understand what the Army was all about.  He adds that no effort was made by the Army to help him understand or recognize his state of mind.  He specifically states:

	a.  he was immature and did not fully understand the consequences and the ramifications of his decisions;

	b.  he was misled by a friend, who stayed home after leave, so he did as well;

	c.  once he and his friend returned, his friend told him to request a discharge reflecting "cannot adapt to the military life";

	d.  he was informed by his legal representative about an undesirable discharge and how he would not be able to receive Veterans Affairs (VA) [now known as the Department of Veterans Affairs] benefits;

	e.  he failed to realize how it would affect getting a job and how his family would suffer;


	f.  he has been a good American, husband, and provider; never abused drugs; and never has been in any trouble; 
	
   g.  after the death of his wife, he has been trying to recoup financially and mentally;

	h.  this issue has haunted him his entire life and he wants to do whatever it takes to rectify his problem; and 

	i.  he has been working for Multi Media Corporation and has volunteered his time for allied veterans of the world, and that through efforts of him along with others they have been able to aid many DVA hospitals and clinics.

3.  The applicant provides no additional documentation in support of this case.

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 31 August 1950.  He enlisted in the Regular Army on 24 October 1968 for a 3 year term of service.  He successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty (MOS) 12A (Pioneer).

3.  A DD Form 458 (Charge Sheet), dated 2 March 1970, shows charges were preferred against the applicant for being absent without leave (AWOL) during the period 24 July 1969 through 16 February 1970.

4.  On 4 March 1970, after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Separations).  

5.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and issued an Undesirable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veterans Administration; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He indicated that he did not desire to make a statement in his behalf.

6.  On 13 March 1970, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be issued an undesirable discharge and be reduced to the lowest enlisted grade.  On 13 March 1970, the applicant was discharged from active duty and was issued an undesirable discharge after completing a total of 9 months and 15 days of creditable active service with 215 days of lost time due to AWOL.

7.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. 

8.  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.  

9.  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 contends that he was young and immature at the time of his misconduct.  However, records show that the applicant was 18 years, 1 month, and 25 days old at the time he entered active duty.  He was 19 years, 6 months, and 14 days old at the time of his discharge and by then should have been well aware of the Army's standards of conduct.  Therefore, his contention that he was young and immature at the time of his offenses does not mitigate his indiscipline during his active duty service.

2.  The applicant's post-service conduct is noteworthy.  However, good post-service conduct alone is not a basis for upgrading a discharge and, upon review, the good post-service conduct is not sufficient to mitigate his indiscipline during his active duty service.

3.  Evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 

4.  The applicant's records show that he had one instance of a lengthy AWOL.  He had completed 9 months and 15 days of service on his 3-year term of service before his separation with a total of 215 days of lost time due to being AWOL.   Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or a general discharge.  Therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20080019785



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ABCMR Record of Proceedings (cont)                                         AR20080019785



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