IN THE CASE OF:	

		BOARD DATE:	6 October 2009   

		DOCKET NUMBER:  AR20090007994 


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 (UD) be upgraded to honorable or general, under honorable conditions.

2.  The applicant states that he was very young when he entered the service and did not realize what he was getting into.  He had 152 days of absence without leave (AWOL) during his period of service from 16 December 1974 to 28 October 1975.  About a year and half prior to his entering the service his father was admitted to the hospital on 26 March 1973 with a cerebral aneurysm and he never came back home after that day.  He was in a coma for about a year and then transferred to a nursing home where he died.  His father had been a farmer. He (the applicant) dropped out of school to work on the farm and help support his Mom and younger siblings.  One day an Army recruiter contacted him and convinced him that he could better support his Mom and siblings if he went into the military.  The recruiter took him to Aberdeen, South Dakota, to do the paperwork and get his GED (General Educational Development) tests certificate [high school equivalency].  On 16 December 1974, he was on his way to Sioux Falls, South Dakota, to catch a plane to Fort Riley, Kansas, and he was only 17 years of age at the time.   

3.  The applicant also states that his Mom had a drinking problem and sometimes would be gone for a week or two at a time.  She would just leave his younger siblings to fend for themselves.  When he came home from basic training he found the kids alone and this is why he went AWOL the first time.  He went back and then his grandmother wrote him and stated that he was needed to get home to take care of the kids before something happened to them.  He went AWOL a second time.  He was young and trying to be responsible but he ended up messing up his life trying to protect the kids.  His mother died in 2004 and his grandparents are also deceased so they cannot provide statements to support his case.  He would greatly appreciate any consideration given to him.

4.  In support of his application, the applicant provides copies of a History and Physical Record and Discharge Summary for an individual the applicant identified as his father, his DA Form 2-1 (Personnel Qualification Record – Part II), his enlistment packet to include a DD Form 373 (Consent, Declaration of Parent or Legal Guardian), his discharge packets, and his DD Form 214 (Report of Separation from Active Duty).

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 submits copies of a History and Physical Record and Discharge Summary for an individual the applicant identified as his father.  The History and Physical Record shows the individual was admitted to the hospital on 26 March 1973 after a family member found him lying on the ground, conscious, but somewhat dazed.  The Discharge Summary shows the individual was discharged on 1 April 1973 and it was recommended he be moved via air ambulance to Fargo, North Dakota, and placed under the care of an Internist or Cardiologist when he got there.

3.  The applicant's military records show he enlisted in the Regular Army in pay grade E-1 on 16 December 1974, for 3 years.  On the date of his enlistment in the Regular Army the applicant was 17 years and 8 months of age.  A DD Form 373 on file in the applicant's record shows he received his father's and his 
mother's consent to enlist in the Army; however, only his mother signed the consent form.  The applicant completed basic combat training and was awarded military occupational specialty 62B (Engineer Equipment Repairman).  

4.  The applicant was reported AWOL on 8 March 1975 and returned to military control on 28 May 1975.  He was again reported AWOL and dropped from the rolls of his organization on 30 June 1975.  He was apprehended by the Federal Bureau of Investigation and returned to military control on 18 September 1975.  

5.  On 18 September 1975, a DD Form 458 (Charge Sheet) was prepared by the Commander, US Army Personnel Control Facility, US Army Garrison, Fort Carson, Colorado.  The applicant was charged with two specifications of being AWOL from 8 March to 28 May 1975 and from 30 June to 9 September 1975.

6.  On 18 September 1975, 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), chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged under other than honorable conditions and furnished a UD Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected to submit a statement in his own behalf.

7.  In a statement, dated 24 September 1975, the applicant stated that he completed basic training at Fort Leonard Wood, Missouri, but did not have advanced individual training.  He went AWOL because he had to go home to take care of his wife and help his mother take care of his siblings.  He wanted to get out of the Army to take care of his wife because she was pregnant and he could not adjust to military life.  He acknowledged, in effect, that his discharge could be with him the rest of his life.

8.  On 30 September 1975, the applicant's unit commander recommended approval of the applicant's request and recommended the issuance of a UD Certificate.  The unit commander stated that the applicant's conduct and efficiency were unsatisfactory and he had, in effect, 152 day lost time due to AWOL.  The unit commander also stated that during the interview, the applicant had assured him that he desired to be discharged from the Army.  It was his opinion, based on the applicant's present attitude and record, that the applicant would never complete his service and that any attempt at rehabilitation would be ineffective.  

9.  On 1 October 1975, the applicant's headquarters commander recommended approval of the applicant's request and recommended the issuance of a UD Certificate.

10.  On 9 October 1975, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that a UD Certificate be issued and that the applicant be reduced to pay grade E-1.

11.  The applicant was discharged on 28 October 1975 in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with his service characterized as under other than honorable conditions, and issued a UD Certificate.  He was credited with 5 months and 14 days net active service and 152 days of lost time due to AWOL.

12.  There is no evidence the applicant requested assistance through his chain of command for a hardship discharge during his period of service.  His records are absent any evidence of awards for meritorious achievement or performance during his period of service.

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

14.  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.  At the time, a UD was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

15.  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.

16.  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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant's contention that his youth impacted his ability to serve successfully is without merit.  The applicant was 17 years and 8 months of age when he enlisted in the Regular Army.  He was 17 and 18 years old, respectively, when he departed AWOL.  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 terms of service.

3.  Additionally, the applicant has submitted no evidence to mitigate his offense or to show that he was denied any assistance with any problems he may have been having back home from his chain of command.  Even if he had a hardship, it was his responsibility to seek assistance through the Red Cross, the chaplain’s office, or various other social service organizations that were available to assist him.

4.  The evidence shows the applicant was charged with two specifications of being AWOL for 152 days.  Upon his return to military control, he voluntarily requested discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged and advised his unit commander that he desired to be discharged from the Army.  The applicant also acknowledged he could be discharged under conditions other than honorable and furnished a UD Certificate.

5.  The applicant has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

6.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

7.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20090007994





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ABCMR Record of Proceedings (cont)                                         AR20090007994



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