IN THE CASE OF:	  

		BOARD DATE: 	        14 June 2009

		DOCKET NUMBER:  AR20090006732 


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 honorable.

2.  The applicant states that he was told his discharge would automatically be changed to honorable after 6 months.  He contends that he was an excellent Soldier as evidenced by his record.  He claims that he did everything by the book until the incident happened and then he no longer believed in his fellow Soldiers, officers, or first sergeant.  He further states that he was sick and reported to the Red Cross; however, his commanding officer did not check with the Red Cross and he was punished by an Article 15. 

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 27 May 1971 for a period of 
3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 64C (motor transport operator).   

3.  The applicant went absent without leave (AWOL) on 26 October 1971 and returned to military control on 1 November 1971.  He went AWOL on 
17 November 1971 and was apprehended by civil authorities and returned to military control on 21 December 1971.  He went AWOL again on 24 December 1971 and was apprehended by civil authorities and returned to military control on 26 February 1972.  On 1 March 1972, charges were preferred against the applicant for the AWOL periods.  Trial by special court-martial was recommended.

4.  On 3 March 1972, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, 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 a chapter 10 would be the best thing for the Army and himself even if it meant he would receive an undesirable discharge.  He stated that he had lost respect for the Army, that he did not want anymore of it, and that he hated Army life, taking orders and the harassment.  He also stated that he did not want to be in the Army or have anything to do with it and that he would continue to go AWOL.  

5.  On 27 March 1972, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 

6.  Accordingly, the applicant was discharged with an undesirable discharge on 
6 April 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 6 months and 26 days of creditable active service with 104 days of lost time due to being AWOL.  

7.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

8.  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.  At the time, an undesirable discharge was normally considered appropriate. 

9.  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.  

10.  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.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  A discharge upgrade is not automatic.

2.  The applicant’s brief record of service included 104 days of lost time.  As a result, his record of service was not satisfactory and 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 an honorable discharge or a general discharge.

3.  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.  

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.
 
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)                                         AR20090006732



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ABCMR Record of Proceedings (cont)                                         AR20090006732



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