DOCKET NUMBER:  AR20090004145 


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 with his service characterized as under other than honorable conditions be upgraded to a general under honorable conditions discharge or to an honorable discharge.

2.  The applicant states that his administrative discharge was flawed in that he was not afforded adequate counsel and was discharged in less than 30 days.  He adds that he was not afforded the opportunity to return on his own accord.

3.  The applicant provides a DD Form 214 (Report of Separation from Active Duty) and a third-party statement of support in support of this 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 was inducted into the Army of the United States on 25 March 1969 and completed basic combat training at Fort Bragg, North Carolina.

3.  On 13 July 1969, the applicant departed absent without leave (AWOL) while attending advanced individual training at Fort McClellan, Alabama.  On 15 July 1974, he was apprehended by the Federal Bureau of Investigation (FBI) and returned to military control.

4.  On 25 July 1974, charges were preferred against the applicant for the AWOL period.

5.  The applicant consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate, that he might be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs), that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

6.  The applicant submitted a statement in his own behalf which stated, "I want out of the Army, I did not like it.  I will take any kind of discharge just so I can get out.  I have a wife and kids and would appreciate a chapter 10, please."

7.  The appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  He directed that the applicant be issued an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 11 September 1974, the applicant was discharged with an undesirable discharge characterized as under other than honorable conditions.  The applicant had completed a total of 3 months and 17 days of creditable active service with 1858 days of lost time.

8.  The applicant provided a statement of support from his former spouse.  This statement essentially states that the reason the applicant went AWOL is because, while attending basic training at Fort Bragg, North Carolina, he was told by a drill sergeant that upon completion of basic training he would be able to live off base with his spouse.  He was then transferred to Fort McClellan, Alabama, for advanced individual training.  Subsequently, his former spouse relocated to a place near Fort McClellan from North Carolina only to discover that the information given to the applicant by the drill sergeant was incorrect.  As a result, his former spouse returned to North Carolina and the applicant decided to accompany her expecting to be picked up by the Army shortly thereafter.  However, this never happened until 4 or 5 years later.  The applicant's former spouse concludes in her statement that the Army did not act appropriately in retrieving him or carrying out their duties so giving him an other than honorable discharge was the Army's fault and not the applicant's.

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the service.

11.  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.

12.  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 contention that his discharge should be upgraded has been carefully reviewed and found to be without merit.

2.  The applicant contends that he was not afforded the opportunity to return on his own accord.  However, he had the opportunity to voluntarily return to military control any time during his 5-year absence.

3.  The applicant's record shows he was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Separations under the provisions of chapter 10 of Army Regulation 635-200 are voluntary separations in which the applicant must admit guilt of the charges.

4.  The available evidence shows the applicant departed AWOL and remained AWOL for over 5 years until he was apprehended by the FBI.  Based on this indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general under honorable conditions or an honorable discharge.

5.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  Therefore, it is concluded that the characterization of and reason for the applicant's discharge were both proper and equitable.  As a result, his discharge accurately reflects his overall record of service.

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)                                         AR20090004145



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ABCMR Record of Proceedings (cont)                                         AR20090004145



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