IN THE CASE OF:	

		BOARD DATE:	22 September 2009  

		DOCKET NUMBER:  AR20090007928 


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 was 18 years old when he joined the military, and that one night while stationed in Germany he was drunk and said some things that he should not have said.  He states that he went absent without leave (AWOL) because a group of African Americans were going to get him for what he said.  He also states that he tried to get his duty station changed but his requests were denied so he went AWOL.  He indicates that he has been a good citizen and that he is truly sorry for the things he said and the way he handled everything.
 
3.  The applicant provides five character reference letters and a copy of his DD Form 214 (Report of Transfer or Discharge) 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 14 October 1951 and he enlisted in the Regular Army on 20 October 1969 for a period of 2 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 94B (cook).  He was transferred to Germany on 21 April 1970.    

3.  On 24 May 1971, the applicant was convicted by a special court-martial of being AWOL from 14 January to 8 February 1971, from 16 February to 18 March 1971, and from 27 April to 29 April 1971.  He was sentenced to be confined at hard labor for 75 days, to forfeit $50 pay for 2 months, and to be reduced to E-1.  On 1 June 1971, the convening authority approved the sentence but suspended the sentence to confinement for 25 days.    

4.  While in Germany, the applicant went AWOL on 1 June 1971.  He returned to military control on 7 January 1973.  On 10 January 1973, charges were preferred against the applicant for desertion.  

5.  On 15 January 1973, 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 Department of Veterans Affairs 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.  

6.  On 19 January 1973, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 

7.  Accordingly, the applicant was discharged with an undesirable discharge on 
31 January 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, 5 months, and 26 days of creditable active service with 651 days of lost time due to being AWOL.  

8.  In support of his claim, the applicant provided five character reference letters from family members, a previous employer, and his pastor.  His family members attest that the applicant went AWOL because he was afraid for his life, that he tried to get his duty station changed, that he wanted to make the Army a career, and that he is honest and trustworthy.  The applicant’s pastor states that he is polite, courteous, and considerate of others.  A previous employer states that the applicant was productive and respectful of others.   

9.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

10.  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. 

11.  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.  The applicant was 18 years of age when he enlisted and he completed basic combat training and advanced individual training.  

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

3.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

4.  The applicant’s record of service included one special court-martial conviction and 651 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an upgrade to 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)                                         AR20090007928



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ABCMR Record of Proceedings (cont)                                         AR20090007928



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