IN THE CASE OF:	  

		BOARD DATE:	 21 April 2009

		DOCKET NUMBER:  AR20080019803 


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.

2.  The applicant states, in effect, that he was 17 years old when he entered the Army and too young to adapt to military life.  He also states that his mother had died 5 years earlier and he just could not cope at the time.

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

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 (RA) in pay grade E-1 on 30 June 1970 for 3 years.  On the date of his enlistment in the RA, the applicant was 17 years and 10 months of age.  He completed basic combat training and served as a General Duty Soldier.

3.  The applicant was reported absent without leave (AWOL) on 9 August 1970.  On 6 September 1970, he was apprehended by civilian authorities and tried for grand larceny on 14 September 1970.  He was sentenced to 1 year in the Intermediate Reformatory.  He was paroled on 28 December 1970 and returned to military control.

4.  The applicant was again reported AWOL on 9 January 1971 and dropped from the rolls of his unit on 6 February 1971.  He was returned to military control on 29 May 1971 and placed in pretrial confinement.

5.  The applicant was again reported AWOL on 14 June 1971 and dropped from the rolls on 2 July 1971.  He was returned to military control on 11 August 1971.  He applicant was again reported AWOL on 28 January 1972 and dropped from the rolls on 31 January 1972.  He apparently returned to military control on          6 February 1972.

6.  All documents related to the applicant's discharge are not on file in his service records; however, on 10 March 1972, the applicant's unit commander recommended approval of the applicant's discharge for the good of the service and recommended the issuance of a UD Certificate.  On the same day, the applicant's battalion commander recommended approval of the applicant's discharge with a UD.  The unit commander stated the applicant's records indicated that retention was neither practicable nor desirable.  The battalion commander stated, in effect, that the retention of the applicant would serve no useful purpose.

7.  A DD Form 458 (Charge Sheet) was prepared by the Commander, U.S. Army Personnel Control Facility, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma.  The applicant was charged with four specifications of absenting himself from his organization from 28 June 1971 to 30 June 1971, from 1 July 1971 to 12 August 1971, from 18 August 1971 to 27 January 1972, and from 28 January 1972 to an unknown date.

8.  On 17 March 1972, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 10, and directed he be provided with a UD Certificate.


9.  The applicant departed AWOL on 5 April 1972.

10.  The applicant was discharged on 12 April 1972 in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He was credited with 4 months and 14 days of total active service and 509 days of lost time due to AWOL and confinement.

11.  In a letter, dated 12 Apirl 1972, the applicant was advised of his discharge from the Army under the provisions of Army Regulation 635-200, chapter 10.  He was also advised that the actual notice of discharge was not given because at the time he was in an AWOL status.

12.  The applicant's records are absent any evidence of awards for meritorious achievement or performance during his period of service.

13.  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.

14.  Army Regulation 635-200, 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 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.  Commanders exercising general court-martial jurisdiction are authorized to order the discharge of individuals under chapter 10.  A UD was normally considered appropriate.

15.  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.

16.  Army Regulation 635-200, paragraph 3-7b, also 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 discharge to honorable.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant's contentions that he was young and could not cope is without merit.  The applicant was 17 years and 10 months of age when he enlisted in the RA.  He was 18 and 19 years old, respectively, when he went AWOL.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who were able to serve successfully and complete their terms of service.

3.  The evidence shows the applicant was charged with four specifications of being AWOL from 22 September 1967 to 23 February 1971.  During one of those periods of AWOL he was convicted by civil authorities of grand larceny.  He was discharged on 12 April 1972.

4.  Contrary to the applicant's contentions, he has provided no evidence nor 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.

5.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  In the absence of all documents related to the applicant's discharge, a presumption of regularity is made in the discharge process.

6.  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)                                         AR20080019803



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ABCMR Record of Proceedings (cont)                                         AR20080019803



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