IN THE CASE OF:	

		BOARD DATE:	22 September 2009   

		DOCKET NUMBER:  AR20090006564 


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, upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states that since his discharge he has truly changed and grown, that he realizes the errors he made, and that he regrets his actions.  He indicates that he previously applied for a discharge upgrade (via the Army Discharge Review Board (ADRB)) but he was unable to attend the personal appearance hearing in Atlanta, GA due to financial difficulties and transportation issues.

3.  The applicant provides a no additional documentation 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 (RA) on 31 August 1972 for a period of 3 years.  He successfully completed One Station Unit Training in military occupational specialty (MOS) 64C (motor transportation operator).

3.  On 25 April 1973, nonjudicial punishment was imposed against the applicant for being absent from his appointed place of duty.  His punishment consisted of a forfeiture of pay and extra duty.  

4.  The applicant went absent without leave (AWOL) on 28 July 1973 and returned to military control on 18 September 1973.  On 27 September 1973, charges were preferred against the applicant for the AWOL period.  Trial by special court-martial was recommended.

5.  On 27 September 1973, after consulting with counsel, the applicant submitted a request for discharge for the good of the service – in lieu of court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated that his mother was ill and needed him at home.       

6.  On 16 October 1973, the separation authority approved the applicant’s request for discharge and directed that he be furnished an Undesirable Discharge Certificate and reduced to the rank/grade of private (PV1/E-1). 

7.  Accordingly, the applicant was discharged with an undesirable discharge on 
31 October 1973 under the provisions of Army Regulation 635-200, chapter 
10, for the good of the service.  He had served a total of 1 year and 12 days of creditable active service with 49 days of lost time due to AWOL.      

8.  On 13 November 1981, the ADRB denied the applicant's request for a discharge upgrade.  His case was heard and a determination made based on evidence of records as a direct result of the failure of the applicant to be present on the date and time scheduled for a Hearing Examination at Nashville, TN on
1 September 1981.

9.  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 (VA) 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.

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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 brief record of service included one nonjudicial punishment and 49 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general or an honorable discharge.

2.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.
  
3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.


4.  The Army does not have nor has it ever had a policy that provides for the
upgrade of a discharge based on the passage of time.  A discharge may be upgraded by the ADRB or this Board if either determines the discharge
was improper or inequitable.  A review of this case reveals no evidence that
suggests there was any error or injustice related to the applicant's
separation processing.  Therefore, his discharge was proper and equitable and it accurately reflects the applicant's overall record of service.  As a result, there is an insufficient evidentiary basis to support granting the applicant's requested relief.

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)                                         AR20090006564



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ABCMR Record of Proceedings (cont)                                         AR20090006564



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