IN THE CASE OF:	  

		BOARD DATE:	       12 May 2009

		DOCKET NUMBER:  AR20090001829 


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 honorable.

2.  The applicant states, in effect, that he was having mental problems that he was not aware of during his period of active duty.  He further states he went absent without leave (AWOL) to help his alcoholic mother and support his siblings.

3.  The applicant provides copies of a medical statement, a letter of support, and his DD Form 214 (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 25 January 1971, completed basic training but not advanced individual training.

3.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 26 through 29 March 1971.  

4.  A special court-martial found the applicant guilty of being AWOL on two separate occasions, from 10 to 25 May 1971 and from 1 June to 15 August 1971. He was in pretrial confinement from 4 September to 3 October 1971.  The court-martial sentence included an additional period of confinement from, 4 October to 7 December 1971.

5.  The applicant went AWOL on 2 January 1972 and remained absent through 18 June 1972, for 168 days.  Upon his return to military control court-martial charges were preferred for this period of AWOL.

6.  After consulting with counsel and being advised of his rights and options, the applicant submitted a voluntary request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, 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 his request was accepted, he could receive a characterization of service of under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also 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 an undesirable discharge.

7.  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.

8.  The applicant was subsequently discharged with an undesirable discharge on 13 July 1972.  He had 5 months and 23 days of creditable active service with 360 days of lost time.

9.  On 20 December 1973, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for discharge.


10.  The applicant's service medical records show no complaints of, findings of, or treatment for any mental condition.

11.  A statement from the Health Resources of Arkansas, dated 24 November 2008, states the applicant has been an active client in their clinic for several years and is diagnosed with paranoid schizophrenia with coexisting medical conditions.

12.  A statement in support of the applicant from J____ H_____, states he has known the applicant for 10 months and the applicant is one of the best people he has known.

13.  Army Regulation 635-200 sets forth the policies and procedures for enlisted personnel separations.  In pertinent part it states at 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 under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

14.  Army Regulation 635-200 sets forth the policies and procedures for enlisted personnel separations.  In pertinent part, Chapter 3, as in effect at that time, outlines the criteria for characterization of service.  

	a.  Paragraph 3-7a states that an honorable discharge 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;  

	b.  Paragraph 3-7a(1) in pertinent part states:  "A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Art 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";  

	c.  Paragraph 3-7b state 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 honorable discharge;  

	
   d.  Paragraph 3-7c states that an undesirable discharge, under other than honorable conditions, is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier; and 

	e.  Paragraph 3-7c(7) specifically addresses issuance of an undesirable discharge issued under the provisions of chapter 10 of this regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he was having mental problems that he was not aware of during his period of active duty.  He further contends he went AWOL to help his alcoholic mother and support his siblings.

2.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

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 the absence of evidence that at the time of his AWOL he was so impaired that he was unable to tell right from wrong or to adhere to the right, his contention of currently being diagnosed with a mental condition does not mitigate the incidents of AWOL; therefore, his service was appropriately characterized.

5.  Further, the applicant's repeated periods of lost time are almost twice as long as his periods of creditable active service.  This clearly shows his service did not meet the most basic standards of acceptable conduct and performance of duty warranting either a general or an honorable discharge.

6.  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)                                         AR20090001829



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ABCMR Record of Proceedings (cont)                                         AR20090001829



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