IN THE CASE OF:	  

		BOARD DATE: 	        14 June 2009

		DOCKET NUMBER:  AR20090003892 


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 an honorable discharge.

2.  The applicant states, in effect, that he received a discharge for the good of the service with an unknown characterization under Army Regulation 635-200 (Personnel Separations), but believed it could change to honorable in 6 months.  He states his discharge never changed over and he does not get any benefits from the Army.

3.  The applicant provides no additional documents 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 enlisted in the Regular Army on 4 April 1968 for a period of 3 years.  He completed basic combat training at Fort Knox, KY, and was reassigned to Fort Leonard Wood, MO, for advanced individual training in June 1968.  His highest grade attained was private, E-1.

3.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date ETS) on his DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from 9 June 1968 to 2 July 1968, 14 July 1968 to 14 July 1968, 16 July 1968 to 18 July 1968, and 3 September 1968 to 11 October 1968.  These periods of lost time are recorded on his DD Form 214 (Report of Separation from Active Duty).  There is no record of nonjudicial punishments under Article 15 for these periods of AWOL.

4.  His DA Form 20 also shows he was confined from 22 July 1968 to 20 August 1968, 12 October 1968 to 30 October 1968 (in hands of civil authorities), and 31 October to 7 November 1968.  These periods of confinement are recorded on his DD Form 214.

5.  On 28 January 1969, the applicant was convicted pursuant to his plea by a summary court-martial of being AWOL from 9 November 1968 through 19 November 1968.  He was sentenced to confinement at hard labor for 1 month and a forfeiture of $30.00 pay for 1 month.

6.  On 3 July 1969, the applicant was convicted pursuant to his plea by a special court-martial of being AWOL on two separate occasions from 23 February 1969 to 1 March 1969 and 25 May 1969 to 27 May 1969, and for violating the conditions of his minimum custody by leaving his assigned area without authority on 25 May 1969.  He was sentenced to confinement at hard labor for 5 months and a forfeiture of $73.00 pay for 5 months.

7.  The applicant’s discharge packet is not available.  However, his DD Form 214 shows he was discharged on 15 April 1970 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with issuance of an undesirable - under other than honorable conditions discharge.  He completed 1 year, 8 months, and 3 days of creditable active service with 604 days of lost time due to AWOL and confinement.

8.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

9.  Army Regulation 635-200 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 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.

10.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  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's contentions have been noted.  However, the U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

2.  In the absence of the applicant's chapter 10 discharge proceedings, the applicant's 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 is presumed to have been administratively correct and in conformance with applicable regulations.

3.  The applicant’s service records show he received one summary court-martial and one special court-martial.  His DD Form 214 shows 604 days of lost time based on his periods of AWOL and confinement.  As a result, his service record was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for an upgrade to an honorable or general discharge.
4.  Although the applicant's discharge packet is not available, it is presumed the separation authority appropriately directed issuance of an undesirable discharge based on his overall record of service.

5.  There is no evidence submitted or evidence of record which shows the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for an upgrade of his discharge to honorable.

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)                                         AR20090003892



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ABCMR Record of Proceedings (cont)                                         AR20090003892



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