IN THE CASE OF:	  

		BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090010730 


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 undesirable discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states, in effect, that he would like to be an officer in “Frank Calimer: Post #9 Italian, American, War Veterans.”  He states that he left the service to take care of his father.  His father was age 75 and in poor health.  His father passed away in 1971.  He also helped to care for his mother who was age 65 at the time and passed away in 1981.  Additionally, he states that he was taken to Fort Dix and offered a hardship discharge.  However, he was only 21 years old, and he took a court-martial to take care of his parents.  He would like his discharge upgraded so that he may be eligible to be a part of a military organization.  He acknowledges he was wrong, but he was young and he was drafted at the wrong time in his life.

3.  The applicant provides no additional documentation.

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.  On 13 April 1970, the applicant was inducted into the Army in Syracuse, New York.  He was 19 years old at the time of his induction.  He successfully completed his training as a wheel vehicle mechanic.

3.  The applicant’s records show that he went absent without leave (AWOL) on 18 June 1970 and he remained absent until 8 April 1971.  He went AWOL again 23 May 1971 and that he remained absent until 17 January 1972.  He was placed in pretrial confinement upon his return to military control.

4.  On 17 January 1972, the applicant was notified that charges were pending against him for being AWOL.  He acknowledged receipt of the notification on 25 January 1972 and, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 625-200, chapter 10, for the good of the service in lieu of trial by court-martial.  In his request for discharge, the applicant acknowledged that he understood that if his request was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  

5.  The appropriate authority approved the request for discharge on 6 March 1972 and he directed the issuance of an Undesirable Discharge Certificate.  Accordingly, on 15 April 1972, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 1 year, 2 months, and 13 days of total active service and he had approximately 533 days of lost time due to AWOL and confinement.  He was furnished an Undesirable Discharge Certificate.

6.  On 15 May 1986, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 26 November 1986, the ADRB denied his petition to upgrade his discharge.

7.  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 at any time after the charges have 


been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant’s separation an undesirable discharge was normally considered appropriate.

8.  Paragraph 3-7a of Army Regulation 635-200 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.  

9.  Paragraph 3-7b of Army Regulation 635-200 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 discharge due to his youth and immaturity and his desire to take care of his parents at the time of the offenses for which he was charged.  He also contends that he desires to be a part of a military organization.  

2.  His contentions have been considered.  However, they are not sufficiently mitigating to warrant the relief requested.  There is no evidence in the available records that shows he made any attempt to seek help through his chain of command for family problems that he now contends he was experiencing while he was in the Army.  

3.  His records show that he had more lost time than he had good time while he was in the Army and, considering the nature of his offenses, his discharge was not too harsh.  It appropriately reflects his overall record of service.

4.  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 has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.



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)                                         AR20090010730



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ABCMR Record of Proceedings (cont)                                         AR20090010730



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