IN THE CASE OF:	  

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090010963 


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 an honorable discharge.

2.  The applicant states, in effect, that he was trying to divorce his former wife who joined him in Germany when she was 8 months pregnant.  His command refused to send her back to the States or allow him to stop his allotment to her.  The applicant states he felt like his former wife was using him.  The only way he could fix his problem was to get out of the military.  He was absent without leave (AWOL), but he stayed in the service after he returned to the United States to try to take care of his affairs.

3.  The applicant states that he was a good Soldier while he was in the military, but because of his problems with his marriage, he felt he had to take care of the problem the best way he could.

4.  The applicant provides:

	a.  two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 10 September 1968 and 24 June 1970;

	b.  a DD Form 47 (Record of Induction), dated 5 December 1967;

	c.  a DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 11 September 1968;

	d.  a DA Form 20 (Enlisted Qualification Record), prepared on 9 June 1969;

	e.  a DA Form 2627-1 (Record of Proceeding Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 16 April 1969;

	f.  chapter 10 Proceedings Under the Provisions of Army Regulation 635-200, dated 24 June 1970; and

	g.  various medical documents (i.e., medical history report, medical examination report, immunization records, and dental records).

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 was inducted into the Army of the United States on 5 December 1967 and successfully completed basic combat training, advanced individual training, and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  On 10 September 1968, the applicant was honorably discharged for immediate enlistment for a 6-year term of service on 11 September 1968.

3.  On 16 April 1969, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL for the period 1230 hours on 11 April 1969 until 1630 hours on 11 April 1969.

4.  A DD Form 458 (Charge Sheet), dated 12 June 1970, shows charges were preferred against the applicant for being AWOL for the period 18 November 1969 through 2 June 1970.

5.  On 15 June 1970, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  The applicant acknowledged in his request that he understood he could be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant did not provide statements in his own behalf.

6.  On 24 June 1970, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200.  It was directed that the applicant be issued an Undesirable Discharge Certificate.  On 24 June 1970, the applicant was discharged and his service was characterized as under other than honorable conditions.  The applicant had completed 2 months and 19 days of creditable active service during this period of service with a total of 203 days of lost time due to being AWOL.

7.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 1 June 1982, the ADRB reviewed and denied the applicant's request for an upgrade.  The ADRB determined that the applicant's discharge was proper and equitable.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. 
At the time, an undesirable discharge was normally considered appropriate.

9.  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.

10.  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 requests that his undesirable discharge be upgraded.  However, his records show that he received one Article 15 and had one lengthy period of AWOL during his second term of service.  He had completed a total 1 year, 11 months, and 23 days of creditable active service with 203 days of lost time due to being AWOL.  Based on these facts, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he has failed to establish a basis for an upgrade of his discharge to that of general or honorable.

2.  The available evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

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)                                         AR20090010963



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ABCMR Record of Proceedings (cont)                                         AR20090010963



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