IN THE CASE OF:	  

		BOARD DATE: 	       10 November 2009

		DOCKET NUMBER:  AR20090010040 


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 a more favorable discharge. 

2.  The applicant states that his ex-wife had a baby and he went to see the baby.  He goes on to state that he knows that he was wrong but he did go back to finish his time. 

3.  The applicant provides no additional documents with 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 21 September 1955 and listed his marital status as "single" when he enlisted in the Regular Army in Knoxville, Tennessee on 8 July 1974, for a period of 3 years, on-the-job training (OJT) as a metal worker (military occupational specialty 44B) and assignment to Fort Bragg, North Carolina.  He completed his basic training at Fort Polk, Louisiana and was transferred to Fort Bragg on 20 September 1974.

3.  On 5 February 1975, he went absent without leave (AWOL) and remained absent in desertion until he was returned to military control at Fort Bragg on 6 May 1975 and charges were preferred against him for the AWOL offense.

4.  The facts and circumstances surrounding the applicant’s discharge are not present in the available records as they were loaned to the Department of Veterans Affairs in Nashville, Tennessee in August 1975.  However, his records contain a duly-constituted DD Form 214 (Report of Separation from Active Duty) signed by the applicant, which shows that he was discharged at Fort Bragg on 27 June 1975, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 8 months and 20 days of total active service and had 90 days of lost time due to AWOL.  He was still in a trainee status.

5.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a voluntary request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  At that time, an undesirable discharge was normally considered appropriate.

7.  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 the absence of evidence to the contrary, it must be presumed that 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.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  

3.  The applicant’s contentions and supporting documents have been considered. However, they are not sufficiently mitigating to warrant relief when compared to his extensive absence during such a short period of time and his undistinguished record of service.  

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)                                         AR20090010040





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ABCMR Record of Proceedings (cont)                                         AR20090010040



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