IN THE CASE OF:	  

		BOARD DATE:	        9 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090006041 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he was told he could get an honorable discharge within 10 years if he did not get into any trouble with the law.  

3.  The applicant provides the following documents in support of his application: a supplemental statement, dated 28 March 2009; a letter of debarment, dated 3 April 1973; and Special Orders Number 61, dated 28 March 1973, reducing him to private, E-1 and discharging him from the service.

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 18 November 1971.  He completed basic combat training at Fort Polk, LA and was reassigned to Fort Bliss, TX, for advanced individual training in April 1972.  His highest grade attained was private, E-2.

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 2 May 1972 to 16 August 1972 and 25 August 1972 to 13 February 1973.  These periods of lost time are recorded on his DD Form 214 (Report of Separation from Active Duty).  However, there is no evidence of any disciplinary action being taken against him for these periods of AWOL.

4.  The applicant’s discharge packet is not available.  However, his DD Form 214 shows he was discharged on 3 April 1973 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with an undesirable discharge.  He completed 7 months and 12 days of creditable active service with 280 days of lost time due to being AWOL.

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

6.  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.

7.  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.

8.  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 considered.  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.  Although the applicant's discharge packet is not available, it is presumed the separation authority appropriately directed the issuance of an undesirable discharge based on his overall record of service.

4.  The applicant’s service records show 280 days of lost time based on his periods of AWOL.  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.  Therefore, the evidence is not sufficient to support upgrading the applicant’s discharge to an honorable or general discharge.

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.




      _______ _   __XXX_____   ___
               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)                                         AR20090006041



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ABCMR Record of Proceedings (cont)                                         AR20090006041



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