IN THE CASE OF:	  

		BOARD DATE	        16 June 2009

		DOCKET NUMBER:  AR20090001696 


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 to a general, under honorable conditions discharge.

2.  The applicant states, in effect, that he is requesting his discharge be upgraded in order for him to obtain health services administered by the Department of Veterans Affairs (VA).  He also states that since his discharge he has maintained consistent employment and has raised five children.  He has tried to enroll in VA medical care services at Martinsburg, West Virginia, and was advised that he could not do so because of his discharge.  He further states, in effect, that the pressure of his family issues, divorce, and military duties led him to start abusing alcohol and his tardiness.  Disciplinary actions followed until he was discharged for unsatisfactory performance.  He was given the opportunity to retrain, but family matters again interrupted this from happening.  His future wife was pregnant and his request to take time off to get married was denied.  He was given a choice to either retrain or accept his current discharge.  If the choice was given to him again, he would no doubt have stayed in the service and been retrained.  

3.  The applicant provides no additional documentation 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's military records show he enlisted in the Regular Army (RA), in pay grade E-1, on 26 January 1973, for 2 years.  He did not complete advanced individual training; therefore, he retained his military occupational specialty (MOS) of 09B (trainee).  However, he was advanced to pay grade E-2 on an unknown date, which is the highest pay grade he held during his period of service.

3.  The applicant was reported absent without leave (AWOL) on 14 May 1973 and returned to military control on 21 May 1973.  

4.  On 23 May 1973, the applicant accepted punishment under Article 15, Uniform Code of Military Justice (UCMJ), for AWOL from 14 May to 22 May 1973.  The punishment included a forfeiture of $50.00 pay per month for 1 month and 14 days of restriction and extra duty.

5.  On 20 December 1973, the applicant accepted punishment under Article 15, UCMJ, for absenting himself from his unit from 19 July through 26 July 1973.  The punishment included an oral reprimand, a reduction to pay grade E-1, and 14 days of restriction and extra duty.

6.  The applicant was reduced to pay grade E-1 on 20 December 1973.

7.  The applicant was again reported AWOL on 7 January 1974 and dropped from the rolls of his organization on 7 February 1974.  

8.  A Military Police Report, dated 2 April 1974, shows the applicant was incarcerated in the Washington County Jail, Hagerstown, Maryland, pending a hearing.  A Military Police Report, dated 20 August 1974, shows that after completing a 62-day sentence for civil charges, he was returned to military control on 19 August 1974.

9.  On 23 August 1974, a DD Form 458 (Charge Sheet) was prepared by the Commander, Company B, U.S. Army Personnel Control Facility (PCF), Fort George G. Meade, Maryland.  The applicant was charged with two specifications of being AWOL from 7 January 1974 to 10 April 1974 and from 12 April 1974 to 19 August 1974.

10.  On 27 August 1974, 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 -  Enlisted Separations), chapter 10. In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged under conditions other than honorable and furnished an undesirable discharge.  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 VA.  He waived his rights and elected to submit a statement in his own behalf.

11.  In the applicant's undated statement, he stated that he really wanted a discharge and that was one of the reasons he went AWOL.  If he did not get a discharge he would go AWOL again because his girlfriend was pregnant and wanted him home with her.  He had a job at home waiting for him, paying good money.  He also stated that he just did not care for the military any longer and had things at home to take care of.

12.  On an unspecified date, the PCF Commander recommended approval of the applicant's request and recommended the issuance of an undesirable discharge. The commander stated that the applicant's conduct was triable by court-martial.

13.  On 27 September 1974, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that an Undesirable Discharge Certificate be issued to him and that he be reduced to pay grade E-1.

14.  The applicant was accordingly discharged on 3 October 1974, 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 1 year and 10 days net active service and 238 days of lost time due to AWOL.

15.  On 14 November 1983, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

16.  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 had committed an offense or offenses for which the authorized punishment includes a punitive discharge could, at any time after the charges had been preferred submit a request for discharge for the good of the service, in lieu of trial by court-martial.  An under other than honorable conditions discharge was normally considered appropriate.  

17.  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 discharge to general, under honorable conditions.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The applicant's contention that his discharge should be changed has been noted.  However, the evidence of record shows the applicant did not complete training for assignment in a military occupational specialty and he was never promoted beyond pay grade E-2.  He was reported AWOL from 14 May to 21 May 1973 and again from 19 July to 26 July 1973 and punished under Article 15 for each offense.  He was also charged with two specifications of AWOL from 7 January to 10 April 1974 and from 12 April to 19 August 1974.  Upon his return to military control he requested discharge in lieu of facing a court-martial.  The applicant waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly.  It appears the applicant made no attempt to adapt to military life.

3.  The applicant also acknowledged that he could be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  In a statement submitted in his own behalf, he stated that he wanted to be discharged and if he was not discharged he would go AWOL again.  

4.  Contrary to the applicant's contentions, he has provided no evidence or 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 discharge.

5.  The Board acknowledges the applicant's desire to have his undesirable discharge upgraded so that he can qualify for medical and/or other benefits administered by the VA and other Federal and State social services organizations; however, the Board does not grant relief solely for the purpose of an applicant qualifying for benefits administered by those agencies.

6.  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.  

7.  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.

8.  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)                                         AR20090001696



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ABCMR Record of Proceedings (cont)                                         AR20090001696



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