IN THE CASE OF:	  

		BOARD DATE:	  	   28 April 2009

		DOCKET NUMBER:  AR20090001855 


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 his undesirable discharge under other than honorable conditions be upgraded to a general discharge under honorable conditions.

2.  The applicant states that while he was stationed in Korea he was sent home on emergency leave due to his mother being ill.  He states after a few months he wasn't sure how long he should stay so he wrote to the Department of the Army Headquarters who told him to report to the nearest military installation.  He states he went to Selfridge Air Force Base, MI, where they indicated there was nothing they could do and sent him home again.  He states he was then picked up by the Detroit Police Department and was sent to Fort Carson, CO.  He states he was told by an attorney it was best to accept a discharge than to face imprisonment at Fort Leavenworth, KS.  He states that as a young, scared kid who only came home on authorized emergency leave, he reluctantly followed the attorney's advice.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) with an effective date of 2 April 1971 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 personnel records show he enlisted in the Regular Army on 30 July 1968.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 11B (Light Weapons Infantryman).  His date of birth is 14 November 1948.

3.  On 15 June 1969, the applicant was assigned to Company A, 1st Battalion, 23d Infantry, 2d Infantry Division, in Korea.

4.  The applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on 23 July and 13 August 1969.  His offenses included being absent from his appointed place of duty and sleeping on post as a sentinel in an area designated as authorizing entitlement to special pay for duty subject to hostile fire.

5.  On 13 October 1969, the applicant failed to return from leave and was declared absent without leave (AWOL).  He was dropped from the rolls on 11 November 1969.

6.  A letter, dated 5 December 1969, from the applicant's commander, addressed to the applicant in Detroit, MI, informed the applicant that he had been carried as AWOL from his unit and was now dropped from the rolls.  The commander instructed the applicant to turn himself in to the nearest military installation and inform them of his status.

7.  On 11 September 1970, the applicant surrendered to civilian authorities and on 18 September 1970 he was returned to military control at the U.S. Army Special Processing Company at Fort Knox, KY.

8.  On 26 October 1970, the applicant departed AWOL and was dropped from the rolls on 27 October 1970.

9.  On 21 January 1971, the applicant returned to military control at the Special Processing Detachment, U.S. Army Garrison, Fort Carson, CO.

10.  On 26 January 1971, court-martial charges were preferred against the applicant for being AWOL during the periods from 18 October 1969 to 12 September 1970 and from 26 October 1970 to 21 January 1971.

11.  On 8 February 1971, the applicant requested a discharge for the good of the service in lieu of trial by court-martial indicating that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs), and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

12.  The applicant's commander and intermediate commander recommended approval of the applicant's request for discharge and that he be given an Undesirable Discharge Certificate.

13.  On 19 February 1971, the applicant was interviewed by an assistant adjutant.  The assistant adjutant stated the applicant continues to go AWOL because he feels he is needed more at home and that because of his attitude he won't return to duty.  The assistant adjutant stated the applicant had had one request for a hardship discharge denied and that the applicant stated he would continue to go AWOL until he was discharged.  The assistant adjutant stated the applicant would not return to duty and would be of little future value to the Army and should therefore be eliminated.

14.  On 29 March 1971, the appropriate authority approved the applicant's request for discharge for the good of the service, directed that the applicant be reduced to private/pay grade E-1, and directed that he be furnished an Undesirable Discharge Certificate.

15.  On 2 April 1971, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) for the good of the service.  He had completed 1 year, 6 months, and 2 days of active service that was characterized as under conditions other than honorable.  He had 421 days of time lost.

16.  On 8 August 1979, the applicant and his counsel appeared before an Army Discharge Review Board (ADRB) travel panel to upgrade his discharge.  On 9 August 1979, the ADRB denied the applicant's request for an upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

17.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included 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 was normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

18.  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 he attempted to turn himself but was turned away.  There is no evidence the applicant attempted to turn himself in from being AWOL and was turned away.  His commander had instructed him to turn himself in to the nearest military police and inform them of his status by a letter, dated 5 December 1969.  At this point the applicant had been AWOL for 53 days. However, the applicant did not surrender to civilian authorities until 10 months later on 11 September 1970.  Therefore, his contention was not considered mitigating in the determination of his case.

2.  He also contends he was a scared young kid at the time he followed an attorney's advice to request a discharge under other than honorable conditions.  However, at the time he initially went AWOL he was 1 month short of his 21st birthday and had over 1 year in the Army.  At the time he requested a discharge for the good of the service in lieu of trial by court-martial he was 22 years of age.  Therefore, the applicant's age was not considered a mitigating factor in the determination of his case.

3.  A review of the applicant's record of service, which included nonjudicial punishment, shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

4.  The applicant voluntarily requested discharge and acknowledged that he could receive an undesirable discharge under other than honorable conditions.  His voluntary request for separation 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.
5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

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

7.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20090001855



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ABCMR Record of Proceedings (cont)                                         AR20090001855



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