BOARD DATE:	  24 November 2009

		DOCKET NUMBER:  AR20090010168 


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, upgrade of his undesirable discharge to a general, under honorable conditions discharge.

2.  The applicant states that he would like to have his discharge changed to general to help him get benefits, if necessary.

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 was inducted into the Army of the United States and he entered active duty on 11 May 1970.  On 7 October 1970, the applicant was reported as being absent without leave (AWOL).

3.  On 2 September 1976, he was apprehended by a Federal Bureau of Investigation (FBI) agents and he was returned to military control.

4.  On 22 September 1976, the company commander notified the applicant of his intent to recommend that he be discharged under the provisions of chapter 15, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) because of misconduct by reason of AWOL or desertion, which continued for one year or more.

5.  The applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects, and the rights available to him, he waived his right to consideration of his case by a board of officers, to personal appearance before a board of officers, and to counsel.  He elected to submit a statement in his own behalf.

6.  The applicant acknowledged that he understood that as a result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.

7.  In the applicant's statement he provided a brief synopsis of his military service.  He explained how his religious belief interfered with him being a Soldier in the Army.  He offered that he was 26 years old and he had been away from the Army for six years.  He added that he did not believe that he could benefit the Army; therefore, he requested to be separated as soon as possible.

8.  On 5 October 1976, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 15. He directed that the applicant be issued an Undesirable Discharge Certificate. 

9.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows that on 18 October 1976, under the provisions of Army Regulation 635-200, chapter 15, he was discharged with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate.  The applicant had completed a total of 6 months and 12 days of active service with 2,175 days of lost under from 7 October 1970 to 1 September 1976. 

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

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 15 of the regulation, in effect at the time, established policy and provided procedures and guidance for eliminating enlisted personnel for misconduct, desertion and absence without leave.  In pertinent part, it provided for the separation of individuals for misconduct when absentees are returned to military control from a status of AWOL or desertion.  When separation for misconduct was warranted, an undesirable discharge was issued. 

12.  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 contends that his undesirable discharge should be upgraded to a general, under honorable conditions discharge to help him get benefits, if necessary.

2.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  The applicant’s record of service included over 2,100 days of lost time.  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 a general, under honorable conditions discharge.

4.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  The applicant has failed to provide such evidence.




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)                                         AR20090010168



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ABCMR Record of Proceedings (cont)                                         AR20090010168



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