IN THE CASE OF:	  

		BOARD DATE:	17 September 2009    

		DOCKET NUMBER:  AR20090007759 


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 a general discharge.

2.  The applicant states, in effect, that he went absent without leave (AWOL) because he was about to be sent to Germany for a second time (17 months) without his wife and son.  He contends the first time he spent 2 months in Germany without them.  He acknowledges that this was very foolish of him, that he has regretted this decision since he made it, and that he turned himself in and accepted his punishment.  He points out that he is an upstanding citizen, that he is still married to the same woman and they have raised two children.  He states that he has worked for DuPont for 31 years, and that he would like his discharge upgraded so he may receive Department of Veterans Affairs (VA) benefits in the future.  He also indicates that he is very sorry, that he was young and he did not take into consideration the consequences of his actions.      

3.  The applicant provides no documentary evidence 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 13 May 1954.  He enlisted in the Regular Army on 26 July 1973 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 AWOL on 20 February 1975 and returned to military control on 2 July 1976.  On 6 July 1976, charges were preferred against the applicant for the AWOL period.  

4.  On 12 July 1976, 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 he could be 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 VA 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 not to submit a statement in his own behalf.  

5.  On 20 July 1976, the separation authority approved the applicant’s request for discharge and directed that he be furnished an Undesirable Discharge Certificate. 

6.  Accordingly, the applicant was discharged with an undesirable discharge on 
29 July 1976 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 1 year, 7 months, and 20 days of creditable active service with 498 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 3-7b, 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.  Age is not a sufficiently mitigating factor.  Although the applicant was 19 years old when he enlisted, he successfully completed basic combat training and advanced individual training.      

2.  Good post service conduct alone is normally not a basis for upgrading a discharge.

3.  A discharge is not upgraded for the purpose of obtaining VA benefits.
 
4.  The applicant’s record of service included 498 days of lost time.  As a result, his record of service was not satisfactory for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

5.  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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

6.  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)                                         AR20090007759



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ABCMR Record of Proceedings (cont)                                         AR20090007759



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