IN THE CASE OF:	  

		BOARD DATE:	        8 October 2009 

		DOCKET NUMBER:  AR20090007989 


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, in effect, that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he got married in June and was drafted in September of 1969.  He states, in effect, he had marital problems and went absent without leave (AWOL) several times.  He further states he made a big mistake when he was younger and regrets it, but states that he did not go to Canada like the "draft dodgers did."  He states that he wants to make his life worth something and has never been in trouble with the law.

3.  The applicant provides no additional documentary evidence in support of this 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's military records show he was inducted into the Army of the United States on 11 September 1969.  He completed basic training only and was not awarded a military occupational specialty.

3.  The applicant's records do not show any significant acts of achievement or valor during his military service.  The highest pay grade attained was private/E-1.

4.  On 26 February 1971, the applicant was charged with three specifications of being AWOL for the periods of 6 January to 11 March 1970, 30 March to 26 August 1970, and 4 September 1970 to 19 February 1971.
	
5.  On 26 February 1971, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).

6.  He acknowledged that he was not subjected to coercion with respect to his request for discharge and had been advised of the implications that were attached to his request.  He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with counsel, which he declined.  However, he was advised of the effects of his request for discharge and the rights available to him by an advisor.

7.  He further acknowledged he understood that if his discharge request was approved, he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration (currently known as 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 chose not to submit a statement in his own behalf.

8.  On 3 March 1971, the applicant's unit commander recommended approval of his request for discharge and recommended he be issued an Undesirable Discharge Certificate.  His intermediate commander recommended approval on 5 March 1971.

9.  On 16 March 1971, the Staff Judge Advocate recommended approval of the applicant's request for discharge.
10.  On 18 March 1971, the separation authority approved the applicant's request for discharge under provisions of chapter 10, Army Regulation 635-200, with an Undesirable Discharge Certificate (DD Form 258A).

11.  On 26 March 1971, the applicant was discharged with an under other than honorable conditions characterization of service.  He was furnished an Undesirable Discharge Certificate.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant shows he completed a total of 6 months and 21 days of active military service with 355 days of lost time due to AWOL.

12.  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 of the applicant's separation, an undesirable discharge was appropriate.

13.  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.

14.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he was charged with being AWOL on three occasions for a total of 355 days.  This serious misconduct warranted an undesirable discharge.

2.  The applicant was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10.

3.  Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090007989



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ABCMR Record of Proceedings (cont)                                         AR20090007989



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