IN THE CASE OF:	  

		BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090008895 


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 characterized as under conditions other than honorable be upgraded to honorable.

2.  The applicant states that he came from a broken home and lacked guidance during his childhood.  He adds that when he enlisted in the Army, he had a girlfriend who was from a dysfunctional family and felt her only recourse was to get pregnant.  The applicant maintains that when he first enlisted in the Army, he was a very good Soldier and performed his duties admirably.  However, when he went home to see his girlfriend, he would stay home longer than authorized.  He offers that he was absent without leave (AWOL) when his child was born.  The applicant states that when he finally got caught, he was sent to Fort Riley, Kansas, where he was given the option to get out of the Army, which he accepted.  The applicant maintains that he regrets and is embarrassed about the decision he made.  He concludes that since his discharge, he has been a good citizen.

3.  The applicant provides no additional documents 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’s record shows he enlisted in the Regular Army and entered active duty on 1 June 1970.  

3.  On 24 November 1970, nonjudicial punishment (NJP) was imposed against the applicant for being AWOL from 7 September 1970 to 12 November 1970.  His punishment consisted of forfeiture of $46.00 per month for 2 months and 30 days restriction.

4.  On 22 July 1971, NJP was imposed against the applicant for being AWOL from 6 July 1971 to 15 July 1971.  His punishment consisted of reduction to pay grade E-2.

5.  On 16 May 1972, the applicant underwent a physical examination and was medically cleared for separation.

6.  On 2 June 1972, charges were preferred against the applicant for being AWOL from 26 August 1971 to 12 May 1972.

7.  On 5 June 1972, the applicant consulted with counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200.

8.  The applicant signed his request for discharge which showed that he was making the request under his own free will, that he was afforded the opportunity to speak with counsel, that he may be furnished an Undesirable Discharge Certificate, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all Veterans Administration benefits, and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected not to submit a statement on his behalf.

9.  On 12 June 1972, 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. 

10.  The applicant's DD Form 214 shows that he was discharged with an undesirable discharge, characterized as under other than honorable conditions, on 20 June 1972.  The applicant had completed 1 year, 1 month, and 9 days of creditable service and had a total of 335 days of time lost due to AWOL.  

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

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, an undesirable discharge was normally considered 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's argument, in effect, that his discharge should be upgraded because of his lack of guidance during his childhood and the subsequent pregnancy of his girlfriend was considered.  However, there is no evidence and the applicant has not provided any to show that he was under undue stress when he entered and during his service in the military and as a result of the situation he sought counseling and/or guidance to alleviate his stress.  Therefore, the contention by the applicant that his situation led to his indiscipline is not sufficient as a basis for upgrading his discharge.

2.  Additionally, the fact that the applicant has been a good citizen since his discharge was also considered.  However, good post-service conduct alone is not a basis for changing properly assigned entries and codes from a previous period of military service.  

3.  Evidence of record shows the applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.  

4.  The applicant’s record of service included two NJP's and 335 days of AWOL.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

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)                                         AR20090008895





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ABCMR Record of Proceedings (cont)                                         AR20090008895



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