IN THE CASE OF:	  

		BOARD DATE:	  10 November 2009

		DOCKET NUMBER:  AR20090010447 


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, an upgrade of his under other than honorable conditions discharge.

2.  The applicant states that he was charged with unauthorized absence but that was not his intention; he had some mitigating circumstances.  He came home to find his mother in a destitute state, unable to read or write, and being manipulated out of her money and possessions.  There were no reliable family members or friends to help her.  He adds that being one of two members who had finished high school in a 12-member family, he made a decision to help his mother despite the damage this caused his military service.  He concludes that he loves the Army but loved his mother more and appeals to this Board to help him.

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 records show he enlisted in the Regular Army for a period of 3 years on 9 August 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 15B (Missile Crewmember).  He was honorably discharged on 2 July 1968 for the purpose of immediate reenlistment and executed a 4-year reenlistment on 3 July 1968.  He was also awarded MOS 11B (Light Weapons Infantryman) and attained the rank/grade of specialist four (SP4)/E-4.

3.  The applicant's records show he served in Korea from on or about 13 January 1967 to on or about 10 March 1968 and in Germany from on or about 27 April 1968 to on or about 27 April 1970.

4.  The applicant's records show he was awarded the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

5.  The applicant's records reveal a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 14 November 1967, for being absent without leave (AWOL) during the period on or about 13 November 1967 through on or about 14 November 1967; his punishment consisted of a reduction to private first class (PFC)/E-3, 14 days of restriction, and 14 days of extra duty.  However, on 15 November 1967, the imposing commander suspended the reduction to PFC/E-3 for a period of 30 days;

	b.  on 28 October 1968, for being AWOL during the period on or about 7 October 1968 through on or about 23 October 1968; his punishment consisted of a reduction to private (PV2)/E-2, a forfeiture of $50.00 pay per month for 2 months, 30 days of restriction, and 30 days of extra duty;

	c.  on 13 July 1970, for being AWOL during the period on or about 9 July 1970 through on or about 13 July 1970; his punishment consisted of 14 days of restriction and 14 days of extra duty; and

	d  on 7 August 1970, for breaking restriction on or about 24 July 1970 and for being AWOL during the period on or about 24 July 1970 through on or about 27 July 1970; his punishment consisted of 14 days of restriction and 14 days of extra duty.

6.  On 21 September 1970, the applicant departed his unit in an AWOL status and was subsequently dropped from the Army rolls on 28 October 1970.  He surrendered to the Federal Bureau of Investigation on 24 January 1972 and was returned to military control on 25 January 1972.

7.  The facts and circumstances of the applicant's discharge are not available for review with this case.  However, his records contain a properly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 29 February 1972 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of trial by court-martial with a character of service of under other than honorable conditions.  This form also shows he completed a total of 6 years and 19 days of creditable active service and had 514 days of lost time.

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

9.  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, an under other than honorable conditions discharge is normally considered appropriate.

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 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 contends that his under other than honorable conditions discharge should be upgraded.

2.  The applicant's record is void of the facts and facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 29 February 1972 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant's discharge accurately reflects his overall record of service during his last enlistment.

4.  The applicant's service in Korea and Germany as well as the family issues he encountered at the time were noted.  However, they are not sufficiently mitigating to grant him the requested relief.  There is no evidence in the available records, nor did the applicant provide documentation, to warrant an upgrade of his discharge.  Furthermore, contrary to his statement that he was charged with unauthorized absence at the time, his record shows an extensive history of AWOL throughout his entire military service.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant the requested relief.


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)                                         AR20090010447



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ABCMR Record of Proceedings (cont)                                         AR20090010447



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