IN THE CASE OF:	  

		BOARD DATE:	  6 August 2009

		DOCKET NUMBER:  AR20090006834 


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, in effect, that when he sought emergency leave to attend to his mother’s financial needs at home his command would not listen to his request, and because he was young he went home to attend to her.  Having anything but an honorable discharge has influenced his job opportunities.  He also states that this has hindered him through the years and has held him back.  He further states that 37 years of bearing the consequences of his youthful actions should be enough to satisfy the system of justice.  He now requests that his status be changed to honorable.

3.  The applicant provides a copy of his DD Form 258A (Undesirable Discharge Certificate); a copy of Headquarters, U.S. Army Infantry Center, Fort Benning, GA, Special Orders Number 339, dated 4 December 1972, discharging him from the Army; and three character reference letters 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 was born on 15 February 1952.  He enlisted in the Regular Army (RA) on 11 January 1972 for a period of 3 years in the rank/grade of private (PV1)/E-1.  He completed the required training and was awarded military occupational specialty (MOS) 12A (Pioneer).  The highest rank/grade he attained during his tenure of service was private first class (PFC)/E-3.

3.  On 12 June 1972, the applicant departed his unit in an absent without leave (AWOL) status and returned from AWOL on 9 July 1972, only to depart again on 12 July 1972.  He was subsequently dropped from the rolls (DFR) of the Army on the same day.  On 16 October 1972, the applicant was apprehended by an agent of the Federal Bureau of Investigation (FBI) and returned to military authorities at Maxwell Air Force Base, Alabama.  He was transferred to Fort Benning on
18 October 1972.

4.  The facts and circumstances pertaining to the applicant’s discharge proceedings are not in his Official Military Personnel File (OMPF).  However, the OMPF does contain a properly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 7 December 1972 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 for the good of the service in lieu of trial by court-martial with an Undesirable Discharge.  The DD Form 214 issued to the applicant at the time confirms he completed a total of 6 months and 25 days of creditable active military service during the enlistment period under review and that he had 124 days of lost time.

5.  There is no evidence available that indicates the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

6.  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.

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 (emphasis added), 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 were carefully considered; however, and there is no record of evidence and the applicant did not provide any evidence to show that his undesirable discharge was either inequitable or unjust.  

2.  Although the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing it does contain a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant’s discharge.

3.  Records show that the applicant was 20 years and 4 months of age at the time of his initial act of indiscipline.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans, medical, or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.
5.  In view of the foregoing, there is no basis for granting the applicant’s requested relief.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090006834



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ABCMR Record of Proceedings (cont)                                         AR20090006834



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