BOARD DATE:	  27 August 2009

		DOCKET NUMBER:  AR20090007043 


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 discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he joined the Army National Guard when he was
19 years old, completed basic and advanced individual training and then returned to his National Guard unit.  He states he served to the best of his ability but missed two or three rotations followed by 108 days of AWOL (absent without leave).

3.  The applicant states he then turned himself in to proper authorities and he was transferred to Fort Carson, CO.  He states during this time he was married and had a son and when he was told they would not be able to accompany him to his next assignment in Germany he chose to “leave, rather than leave” his family to survive without him.

4.  The applicant states over the next 27 or 28 years he worked for a tree company and gave his heart to God.  He states he has tried to become a better man than he was in his youth and acknowledges the mistakes he made in his life.  He notes that he and his spouse now run their church’s Lighthouse program, working to help the local homeless population.  He states he would like to have his discharge changed so his family can be proud of him and so that he can have peace of mind and right the wrong he has done.

5.  The applicant provides no additional evidence in support of his request.

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.  Records available to the Board indicate the applicant initially entered military service as a member of the Army National Guard in April 1974.  He was 19 years old at the time.  Between June and October 1974 the applicant successfully completed basic and advanced individual training in an active duty status and then returned to his National Guard unit.  He was ultimately advanced to pay grade E-3.

3.  By November 1975, the applicant had accumulated 9 unexcused absences and actions were started to involuntarily order him to active duty as an unsatisfactory participant.  On 16 May 1976 the applicant was discharged from the Army National Guard with a general discharge and ordered to report to Fort Knox, KY not later than 17 May 1976 to commence his period of active duty.

4.  The applicant failed to report to Fort Knox and as such he was placed in an AWOL status.  He was subsequently dropped from the rolls (DFR) of the Army on 16 June 1976.

5.  On 2 September 1976 he was apprehended by the FBI and returned to military control.  

6.  A DD Form 458 (Charge Sheet), dated 10 September 1976, shows the applicant was charged with being AWOL from 17 May 1976 until 1 September 1976.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (in lieu of trial by court-martial).  In doing so, he acknowledged that he could be discharged 
under other than honorable conditions and furnished an Undesirable Discharge 
Certificate, and as a result of the issuance of such a discharge, he could be 
deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  In a statement submitted in his own behalf he stated that he had transportation issues which resulted in his missing drills.  He also noted that after the buddy he had enlisted with was discharged during basic training, he (the applicant) was no longer interested.  He stated he wanted to get out because of personal reasons and he had a wife and child with no means of support.  He was placed in an excess leave status effective 6 October 1976.

7.  On 22 October 1976, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an Undesirable Discharge Certificate be issued. 

8.  The applicant was discharged on 9 November 1976, under the provisions of Army Regulation 635-200, chapter 10 with his service characterized as under other than honorable conditions.  He was also credited with completing a total of 6 months and 8 days of active service, which included his prior period of active duty while undergoing basic and advanced individual training in 1974.

9.  In November 1992 the Army Discharge Review Board (ADRB) denied the applicant's petition for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for 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.  An under other than honorable conditions discharge is normally considered appropriate.  However, at the time of the applicant's separation an undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 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 contentions have been noted; however, it is apparent that the applicant's discharge was based on his overall performance during his period of military service.  It appears the applicant made little attempt to adapt to military life.  The applicant was 19 years old when he enlisted in the Army National Guard and 21 years old when he was ordered to active duty for nonparticipation.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  His successful completion of training and advancement to the rank of private first class is evidence the applicant was capable of fully honorable service.  

2.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.  

3.  The applicant's military service records show that he voluntarily requested discharge for the good of the service in lieu of trial by court-martial and acknowledged guilt of the charges against him.  There is no evidence to indicate the applicant's administrative separation was not accomplished in compliance with applicable regulatory guidance and there is no indication of procedural errors that would have jeopardized his rights.

4.  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)                                         AR20090007043



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ABCMR Record of Proceedings (cont)                                         AR20090007043



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