BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090009467 


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 honorable.

2.  The applicant states that when he received the undesirable discharge, at the age of 19, he had serious problems with alcohol and drugs.  He adds that he went absent without leave (AWOL) not because he did not love his country but because he simply could not cope with life in the military.

3.  The applicant provides a self-authored statement 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 enlisted in the U. S. Army Reserve Delayed Entry Program on 11 December 1972 and enlisted in the Regular Army, at the age of 18, on 
29 December 1972.  He successfully completed initial entry training and was awarded military occupational specialty 63A (Wheel Vehicle Mechanic).  

3.  On 15 February 1974, charges were preferred against the applicant for being AWOL from 2 October 1973 to 27 December 1973.

4.  The applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged in his request that he understood he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He acknowledged that he understood that he would be deprived of many or all Army benefits, that he would be deprived of many or all benefits administered by the Veterans Administration, and that he would be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  

5.  The applicant submitted a statement in his own behalf.  In this statement he indicated, in part, that he had not been able to adjust to military life.  He felt that as a civilian he could do more for himself and his future.  He also stated that he did not have the desire needed to function properly in the military.  

6.  On 8 March 1974, the appropriate authority approved the applicant's request and directed he receive an Undesirable Discharge Certificate.  On 18 March 1974, the applicant was discharged accordingly under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by   court-martial.  He completed 11 months and 24 days of creditable active service with 86 days of time lost due to being AWOL.

7.  The applicant provides a self-authored statement which states, in part, he was only 18 years of age when he went AWOL and 19 when he was discharged. At that time he had serious problems with alcohol and drugs and could not cope with the pressures of the military.  He deeply regrets what happened but could not have done any better under the circumstances.  He continues that he loves his country and going AWOL was not an act of desertion, he just needed to get away.  He adds that he has gotten his life on track since then and has been clean and sober for over 24 years.  He obtained a college education and has a Doctorate Degree in Ministry.  


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

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.

10.  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.

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.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by   court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the applicant’s request was made under coercion or duress.

2.  Age is not a sufficiently mitigating factor.  The applicant completed initial entry training and there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who completed their term of military service.

3.  The applicant's record of indiscipline includes 86 days of lost time due to being AWOL.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge or an honorable discharge.  

4.  The applicant's post-service conduct and accomplishments are commendable; however, in order to justify a correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090009467



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ABCMR Record of Proceedings (cont)                                         AR20090009467



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