IN THE CASE OF:	  

		BOARD DATE:	       14 May 2009

		DOCKET NUMBER:  AR20090002168 


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 general.

2.  The applicant states, in effect, that he served in the Regular Army honorably for 2 1/2 years.  After a break in service, he reenlisted but had marital problems and was worried about his child.  He has been ashamed and embarrassed and feels that he needs to have his discharge upgraded. 

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Report of Separation from Active Duty) 

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.  On 6 October 1969, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 63G (Fuel and Electrical Systems Repairman).

3.  On 16 April 1970, the applicant was assigned for duty with the 71st Maintenance Battalion, in the Federal Republic of Germany.

4.  The applicant returned to the United States on or about 7 January 1971.  He was subsequently assigned for duty with the 185th Maintenance Battalion, in the Republic of Vietnam.  He returned to the United States on or about 26 January 1972, for duty at Fort Devens, Massachusetts. 

5.  On 18 April 1972, the applicant was released from active duty and transferred to the United States Army Reserve Control Group (Annual Training).  He had attained the rank specialist five, pay grade E-5, and had completed 2 years, 
6 months, and 8 days of creditable active duty service.  His characterization of service was honorable.

6.  On 31 October 1972, the applicant enlisted in the Regular Army for 3 years.  He retained his former rank and MOS and was assigned for duty at Fort Carson, Colorado.

7.  Records show that the applicant was absent without leave (AWOL) during the periods from 24 June to 25 August 1974 (63 days); and from 17 September 1974 to 7 January 1975 (113 days). 

8.  The available records do not show what charges were preferred under the Uniform Code of Military Justice. 

9.  The discharge packet is missing from the applicant's military records.  However, his DD Form 214 shows that he was administratively discharged on 
7 February 1975, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service.  His service was characterized as under conditions other than honorable.  He had completed 1 year, 9 months, and 12 days of creditable active duty and had 176 days of lost time due to AWOL.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.



11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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 that his discharge under other than honorable conditions should be upgraded.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  The applicant's record of good service is greatly diminished by the lengthy periods of AWOL.  Furthermore, he has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.

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 the aforementioned requirement.

5.  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)                                         AR20090002168





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ABCMR Record of Proceedings (cont)                                         AR20090002168



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