DOCKET NUMBER:  AR20090004111 


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 discharge be upgraded. 

2.  The applicant states, in effect, that he entered the service because of a recent divorce at the age of 20.  He maintains that he was not mature enough to handle the Army at the time of his enlistment.  He states that he graduated from basic training in 1973 and was subsequently sent to his advanced individual training (AIT) course at Fort Polk, Louisiana.  He adds that he failed to complete AIT due to being absent without leave (AWOL).  The applicant offers that he was arrested by the military police and held at Fort Gordon, Georgia for almost a month.  He maintains that the commanding officer told him that based upon his records, he could complete AIT with a different unit, but he elected to be discharged instead; a decision he now regrets. 

3.  The applicant provides his self-authored statement.

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 record shows he enlisted in the Regular Army and entered active duty on 2 October 1973.  His date of birth is listed as 14 January 1953.  He was 20 years old at the time of enlistment.

3.  On 4 April 1974, charges were preferred against the applicant for being AWOL from his unit from 14 January 1974 to 3 April 1974.

4.  On 10 April 1974, the applicant consulted with counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

5.  The applicant signed his request for discharge which showed that he was making the request under his own free will; that he was afforded the opportunity to speak with counsel; that he may be furnished an Undesirable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration (VA) [now known as the Department of Veterans Affairs] benefits; and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected not to submit a statement in his behalf.

6.  On 18 April 1974, the major in command of the Personnel Control Facility, Fort Gordon, Georgia, recommended approval of the applicant’s request for discharge for the good of the service.  He recommended that the applicant be issued an Undesirable Discharge Certificate.

7.  On 22 April 1974, the acting lieutenant colonel in the position of commander of Headquarters Command, U.S. Army School/Training Center, Fort Gordon, Georgia, recommended approval of the discharge action.  He recommended that the applicant be issued an Undesirable Discharge Certificate.

8.  The major general in command of the U.S. Army School/Training Center, Fort Gordon, Georgia, approved the applicant’s discharge under the provisions of chapter 10 of Army Regulation 635-200 with the issuance of an Undesirable Discharge Certificate.



9.  The applicant's DD Form 214 shows that he was discharged under other than honorable conditions, on 7 June 1974.  The applicant had completed 5 months and 17 days of creditable service and had a total of 79 days of time lost 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 that Board's 15-year statute of limitations.

11.  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.

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 argues that his discharge should be upgraded because he was recently divorced and not mature enough to handle the Army.

2.  Evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of service.

3.  The records show that the applicant was 21 years old at the time of his offense.  There is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service during difficult times.  Therefore, the contention by the applicant that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge.

4.  The applicant's record of service included preferred charges for 79 days of time lost due to AWOL.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, there is no basis to upgrade the applicant's discharge. 

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)                                         AR20090004111





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004111



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1