IN THE CASE OF:	

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090010692 


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 (UD) to a general, under honorable conditions discharge (GD).

2.  The applicant states he was not AWOL (absent without leave) at the time of his discharge.

3.  The applicant provides copies of his DD Form 214 (Report of Separation from Active Duty) and four letters of support 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 enlisted in the Regular Army (RA) on 26 July 1973, he completed basic combat training, and he was assigned for duty at Fort Ord, CA for his advanced individual training.  He was subsequently reassigned to Fort Jackson, SC for his only permanent duty station.

3.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), as follows:

	a.  on 5 October 1973, for theft of a leather jacket from the Fort Jackson, SC Main Post Exchange and possession of marijuana on 29 September 1973;

	b.  on 5 February 1974, for failing to go at the time prescribed to his appointed place of duty at Fort Jackson on 4 February 1974;

	c.  on 13 March 1974, for being AWOL from Fort Jackson from 2 through
7 March 1974;

	d.  on 2 April 1974, for failing to go at the time prescribed to his appointed place of duty at Fort Jackson on 1 April 1974; and

	e.  on 21 June 1974, for being AWOL from Fort Jackson from 28 May through 17 June 1974.

4.  On 7 December 1974, special court-martial charges were preferred for two periods of AWOL, from 15 through 21 November 1974 and from 22 November through 3 December 1974.  The charge sheet shows he was placed in pretrial confinement on of 6 December 1974.

5.  On 16 December 1974, after consulting with counsel and being advised of his rights and options, the applicant voluntarily submitted a formal request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 by reason of for the good of the service – in lieu of trial by court-martial for an offense punishable by a bad conduct or d dishonorable discharge.  He acknowledged that he was guilty of the charges or lesser included charges and that if the request was accepted he could receive a discharge under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He further acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.

6.  The applicant's immediate commander recommended approval of the applicant's request for discharge with an Undesirable Discharge Certificate.

7.  The applicant's intermediate commanders also recommended approval of the applicant's discharge request; however, they recommended issuance of a General, Under Honorable Conditions Discharge Certificate.

8.  The available records do not contain a copy of the final decision by the approving authority.  However, it does contain a duly constituted DD Form 214 that confirms his discharge under the provisions of Army Regulation 635-200, chapter 10, with issuance of an Undesirable Discharge Certificate.  This DD Form 214 also contains the entry "EM Discharged in AWOL Status."

9.  A U.S. Army Transfer Station, Fort Jackson letter, subject:  Optional Form for Explanation of Separation from Service, dated 10 January 1975, shows the applicant was discharged under Army Regulation 635-200, paragraph 10-1.  The narrative reason for separation is shown as "conduct triable by court-martial."  This form is not signed by the applicant.

10.  Headquarters, U.S. Army Training Center, Fort Jackson, Special Orders Number 8, dated 10 January 1975, discharged the applicant under the provisions of Army Regulation 635-200, paragraph 10-1.  These orders were amended, on the same date, to show the entry "EM [Enlisted member] Discharged in AWOL Status."

11.  The applicant was discharged on 10 January 1975.  The applicant's DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, with an SPD (Special Program Designator) of KFS (for the good of the service, in lieu of trial by court-martial).  He had 1 year and 5 months of creditable service with 45 days of lost time.  The form is not signed by the applicant and block 27 (Remarks) shows the entry "EM Discharged in AWOL Status."

12.  The applicant's former pastor relates that the applicant and his family were very active in the church with the applicant serving as a steward and a member of the Men's Booster Club.

13.  A Department of Veterans Affairs (VA) Social Worker reports that the applicant had completed the Substance Abuse Treatment Program and he was diligently maintaining his sobriety.  

14.  His son states that after his mother separated from his father, she ran into trouble with the law and she was jailed.  His father, though still on active duty, and his grandmother, took him in and cared for him.  When his mother was released from prison, she again took custody and they moved around a lot.  Despite all the moves he and his mother made, his father was able to keep track of him and stayed in contact.

15.  A neighbor relates that he has known the applicant for seven years.  The applicant is dependable, reliable, and a pleasure to know.  He has often done work on the house when the neighbor was unable to and offers his services without being asked.

16.  Army Regulation 15–185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

17.  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.

18.  The UCMJ Table for Maximum Punishment shows that convictions under Article 86 (AWOL) of more than 3 but not more than 30 days authorizes a maximum punishment of 6 months confinement for each period of AWOL.

19.  The Manual for Courts–Martial provides (Rule for Courts-Martial 1003d3) that an individual convicted of two or more offenses for which the authorized confinement totals 6 or more months, may be sentenced to a bad conduct discharge even though a bad conduct discharge is not otherwise authorized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was not AWOL at the time of his discharge.



2.  The applicant avers that he was not AWOL at the time of his separation but he has not provided any evidence to support this contention.  The fact that neither the DD Form 214 nor the Optional Form for Explanation of Separation from Service is signed by the applicant tends to support the AWOL statement.  In the absence of evidence to the contrary, the presumption of regularity in governmental affairs is accepted that the entry is correct.

3.  The letters submitted by the applicant contain insufficient evidence or mitigating factors to support an upgrade of the applicant’s discharge.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  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)                                         AR20090010692



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ABCMR Record of Proceedings (cont)                                         AR20090010692



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