IN THE CASE OF:	  

		BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090010370 


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 under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states he was home on authorized leave and found a strange man with his fiancée and he went off the wall and out of his mind.

3.  The applicant provides a DD Form 214 (Report of Separation from Active Duty), two letters from his current employer, a criminal background check statement, and a child abuse history clearance 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 Regular Army on 3 March 1975 and completed initial entry training. 

3.  A DA Form 31 (Request and Authority for Leave), dated 23 July 1975, shows the applicant requested and was approved for 30 days of leave (1 August to
31 August 1975) enroute to Germany.

4.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, Special Orders Number 210, dated 29 July 1975, directed the applicant's reassignment to the Headquarters and Headquarters Detachment (HHD), 21st Replacement Battalion, APO New York 09757 (Germany), with a reporting date of 31 August 1975.

5.  Item 21 (Time Lost) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave (AWOL) from 31 August 1975 through 2 December 1975.  Item 35 (Current and Previous Assignments) of this form shows he was dropped from the rolls effective 30 September 1975.

6.  A DA Form 4187 (Personnel Action), dated 11 December 1975, shows the applicant returned to military control, at Fort Dix, New Jersey, on 3 December 1975.  This form also shows the applicant had been dropped from the rolls of HHD, 21st Replacement Battalion.

7.  A DA Form 4187, dated 15 January 1976, shows the applicant departed AWOL for a second time effective 12 January 1976.

8.  A DA Form 3836 (Notice of Return of US Army Member from Unauthorized Absence) shows the applicant was apprehended by civilian authorities and returned to military control on 3 March 1977.

9.  The applicant's discharge proceedings are not available for review.

10.  The applicant's DD Form 214 shows he was discharged on 29 March 1977, with a discharge characterized as under other than honorable conditions, under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 
8 months and 4 days of active duty service with 509 days of lost time.

11.  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.


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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is 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.  In the absence of the applicant's separation proceedings, it must be presumed that his 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.  The available evidence shows the applicant had 509 days of lost time due to being AWOL.  Based on this indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

3.  In order to justify 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)                                         AR20090010370



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ABCMR Record of Proceedings (cont)                                         AR20090010370



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