IN THE CASE OF:	  

		BOARD DATE:	    29 December 2009

		DOCKET NUMBER:  AR20090012463 


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.  

2.  The applicant states that he went absent without leave (AWOL) because his wife started a relationship with his younger brother.  He contends that they had a two year old son and he could not handle the emotional stress she put him through at his young age.  He also states that he was a good Soldier, that he made private first class and was on his way to specialist four, and that he served more time than a draftee.   

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) 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 was born on 21 July 1954.  He enlisted in the Regular Army on 1 November 1971 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty (MOS) 11C (infantry indirect fire crewman).

3.  On 30 August 1972, nonjudicial punishment was imposed against the applicant for violating a lawful general regulation.  His punishment consisted of a forfeiture of pay.

4.  On 14 November 1972, in accordance with his plea, the applicant was convicted by a summary court-martial of being AWOL from 18 September 1972 to 28 September 1972.  He was sentenced to be reduced to E-2, to forfeit $50.00 pay per month for 1 month, and to perform 30 days of extra duty.  On 
14 November 1972, the convening authority approved the sentence and ordered it executed, except that portion of the sentence in excess of reduction to E-2 and to perform extra duty for 30 days was suspended for 90 days.  On 14 December 1972, the suspended sentence was vacated. 

5.  On 23 February 1973, contrary to his plea, the applicant was convicted by a summary court-martial of being AWOL from 10 December 1972 to 13 December 1972.  He was sentenced to be reduced to E-1, to perform extra duty for 15 days, and to be restricted to the limits of his unit and place of duty and worship for 
15 days.  On 23 February 1973, the convening authority approved the sentence.

6.  On 30 April 1973, nonjudicial punishment was imposed against the applicant for being AWOL from 15 April 1973 to 16 April 1973.  His punishment consisted of a reduction to E-1, a forfeiture of pay, and extra duty.

7.  The facts and circumstances surrounding the applicant's discharge are not contained in the available records.  However, the applicant's DD Form 214 shows he was discharged with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate on 13 September 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  His DD Form 214 shows he was separated from the service on temporary records and a Soldier's affidavit and he had 183 days of lost time.

8.  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.  At the time, an undesirable discharge was normally considered appropriate.
9.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

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.  Age is not a sufficiently mitigating factor.  Although the applicant was 17 years old at the time of his enlistment, he successfully completed basic combat and advanced individual training and he was awarded MOS 11C. 

2.  Marital problems are not normally grounds for upgrading a discharge.  There is no evidence of record which shows he sought assistance from his chain of command or chaplain for a way to resolve his problems within established Army procedures prior to going AWOL.

3.  In the absence of evidence to the contrary, it must be presumed that the applicant's separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, 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)                                         AR20090012463





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ABCMR Record of Proceedings (cont)                                         AR20090012463



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