IN THE CASE OF:	  

		BOARD DATE: 	        4 June 2009

		DOCKET NUMBER:  AR20090003254 


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 (UD) be upgraded.

2.  The applicant states, in effect, that he went through his chain command and received no help.  He was very young, mixed up, and married.  He knows what he did was wrong, but he had to go absent without leave (AWOL) because he had an obligation to his wife.  He completed the paperwork for her to receive an allotment, but she never received any money and he had promised to take care of her.  He also states, in effect, that he has lived with the shame of his discharge for almost 37 years, he has worked the same job for 30 years, and he almost died from a brain tumor 2 years ago and is now on full disability.

3.  In support of his application, 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's military records show he enlisted in the Regular Army in pay grade E-1 on 31 January 1973 for 2 years.  On the date of his enlistment in the Regular Army the applicant was 19 years of age.  He completed basic and advanced individual training and was awarded military occupational specialty 17K, Radar Operator.  He was promoted to pay grade E-3 on 16 December 1973.  This was the highest grade that he held.

3.  The applicant was reported AWOL on 18 January 1974 and dropped from the rolls of his organization on 16 February 1974.  He was apprehended by military authorities and returned to military control on or about 6 May 1974.

4.  On 10 May 1974, a DD Form 458 (Charge Sheet) was prepared by the Commander, U.S. Army Personnel Control Facility, U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri.  The applicant was charged with one specification of being AWOL from 18 January 1974 through on or about 6 May 1974.

5.  On 10 May 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), 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 other than honorable conditions and furnished a UD Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected to submit a statement in his own behalf.

6.  In a statement, the applicant stated, in effect, he believed he should be discharged for the good of the service because he and his wife were having many personal and financial problems and he was needed at home.  His wife had some medical problems and she was very upset and had bad nerves.

7.  On 16 May 1974, the applicant's unit commander recommended approval of the applicant's request and recommended the issuance of a UD Certificate.  The unit commander stated that the applicant had demonstrated that he was unwilling to adjust to military service and that any further disciplinary or rehabilitative action would be futile.  The applicant had been interviewed and in view of his statements, demeanor, and attitude, he believed the discharge would be in the best interest of the service.

8.  On 16 May 1974, the Personnel Control Facility commander recommended approval of the applicant's request and recommended the issuance of a UD Certificate.

9.  21 May 1974, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that a UD Certificate be issued and that the applicant be reduced to pay grade E-1.

10.  The applicant was discharged on 23 May 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 5 days of net active service and 108 days of lost time due to AWOL.

11.  There is no evidence the applicant requested assistance through his chain of command for a hardship discharge during his period of service.  His records are absent any evidence of awards for meritorious achievement or performance during his period of service.

12.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations for an upgrade of his discharge.

13.  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 included a punitive discharge could, 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 UD was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 or is otherwise so meritorious that any other characterization would be inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, also 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 UD.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant's contention that his youth impacted his ability to serve successfully is without merit.  The applicant was 19 years of age when he enlisted in the Regular Army.  He served from his enlistment in January 1973 until 18 January 1974 without incident.  He was 20 years old when he went AWOL.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their terms of service.

3.  Additionally, the applicant has submitted no evidence to mitigate his offense or to show that he was denied any assistance with these problems from his chain of command.  Even if he had a hardship, it was his responsibility to seek assistance through the Red Cross, the chaplain’s office, or various other organizations that were available to assist him.

4.  The evidence shows the applicant was charged with one specification of being AWOL for 108 days.  Upon his return to military control, he voluntarily requested discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  The applicant also acknowledged he could be discharged under conditions other than honorable and furnished a UD Certificate.

5.  The applicant has provided no evidence or a convincing 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 or fully honorable discharge.

6.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

7.  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)                                         AR20090003254



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ABCMR Record of Proceedings (cont)                                         AR20090003254



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