IN THE CASE OF:	  

		BOARD DATE:	       19 March 2009

		DOCKET NUMBER:  AR20080019862 


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 (UD) be upgraded.

2.  The applicant states that, after finishing second in his basic training company, he proceeded to advanced individual training (AIT).  He received notice that his girlfriend was pregnant while he was in AIT.  She had no one to assist her so he went absent without leave (AWOL) to take care of her.  He married her and they raised three children.  They now have 11 grandchildren.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of 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 entered active duty in the Regular Army on 30 November 1971 and completed basic training.

3.  While attending AIT, the applicant was AWOL on three occasions from 24 February 1972 through 8 March 1972, 17 April 1972 through 5 May 1972, and 14 May 1972 through 30 July 1972.

4.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for the 24 February 1972 through 8 March 1972 period of AWOL.

5.  Upon return to military control on 31 July 1972, the applicant was placed in confinement and court-martial charges were preferred on 2 August 1972 for two periods of AWOL.

6.  The available record contains no documentation of the pregnancy-related problems that the applicant alleges were the cause of his AWOL.  It indicates that the applicant was married at the time he entered active duty.  In a pre-separation interview it is noted that the applicant had received NJP on two occasions for being AWOL.  Documentation of the second NJP is not of record.

7.  On 10 August 1972, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.  He acknowledged that if the request was accepted that he could receive a discharge under other than honorable conditions and be furnished a UD Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UD.

8.  The discharge authority approved the separation and directed that applicant receive a UD.

9.  The DD Form 214 shows he was discharged on 28 August 1972 with 5 months and 7 days of creditable service with 114 days of lost time.

10.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  In pertinent part it provides the following:
	a.  Chapter 3 outlines the criteria for characterization of service.  Paragraph 
3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  Paragraph 3-7a in pertinent part states, "A Soldier will not necessarily be denied an HD solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Article 15…It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."  Paragraph 3-7b states that a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an HD.  Paragraph 3-7c states that an under other than honorable conditions (UOTHC) discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  Paragraph 3-7c(7) specifically addresses issuance of a UOTHC for discharges issued under the provisions of chapter 10 of this regulation.

	b.   Chapter 10 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 UOTHC is normally considered appropriate.  However, at the time of the applicant's separation, the regulation provided for the issuance of a UD.

12.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that the reason he went AWOL was to care for his pregnant girlfriend.  He married her and they have three children.

2.  There is no indication in the record that the applicant notified his command of his alleged family problems or attempted to address those issues prior to his repeated periods of AWOL.

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

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

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)                                         AR20080019862



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ABCMR Record of Proceedings (cont)                                         AR20080019862



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