IN THE CASE OF:	

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090013084 


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 upgrade of his undesirable discharge to a general, under honorable conditions discharge.

2.  The applicant states that when he enlisted in the military he was 17 years old. He explains that his girlfriend was pregnant with his child and he did the right thing and they got married.  He adds that not reporting to the base was the biggest mistake of his life and it has affected him and his family.  The applicant states that he made the choice and his family should not have to pay for his mistake.

3.  The applicant does not provide any additional information with 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’s record shows he originally enlisted in the Regular Army (RA) on 13 October 1969 and he was honorably discharged on 11 October 1970 after completing 11 months and 28 days of service.  He was 17 years old at the time of his first enlistment.  On 12 October 1970, the applicant reenlisted.

3.  On 14 July 1970, nonjudicial punishment was imposed against the applicant under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 4 July 1970 to 6 July 1970.  His punishment consisted of forfeiture of $39.00 per month for one month and 14 days of restriction and extra duty.

4.  On 24 February 1976, charges were preferred against the applicant for being AWOL from 28 December 1970 to 18 February 1976.

5.  On 26 February 1976, the applicant consulted with counsel and requested a discharge for the good of the service in lieu of trial by court-martial 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 court-martial.

6.  The applicant signed his request for discharge which showed that he was making the request under his own free will, that he was afforded the opportunity to speak with counsel, that he may be furnished an Undesirable Discharge Certificate, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all Veterans Administration (VA) benefits, and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected to submit a statement in his behalf.

7.  In the applicant's statement he explained that while at the airport, on the advice of a Senator, his grandmother called him and had him return home.  He said that he never heard from the Army concerning his discharge.  He added that he needed to get out of the Army because of his two-year old son and pregnant wife.  He offered that his family had no way to support themselves.

8.  On 18 March 1976, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that he be issued an Undesirable Discharge Certificate.

9.  The applicant's DD Form 214 shows that he was discharged with an undesirable discharge on 20 April 1976.  The applicant had completed 1 year, 4 months, and 13 days of creditable service with over 5 years of time lost due to AWOL.

10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's
15-year statute of limitations.

11.  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.

12.  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, in effect, that his discharge should be upgraded because he was young and his girlfriend was pregnant with his child.

2.  Evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of service.

3.  The record shows that the applicant had received an honorable discharge from his first enlistment, he had subsequently reenlisted, and he was 18 years old at the time of his offense.  There is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service during difficult times.  Therefore, the contention by the applicant that his age and situation led to his indiscipline is not sufficient as a basis for upgrading his discharge.

4.  The applicant’s record of service included one Article 15 and over 5 years of AWOL.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, he is not entitled to a discharge upgrade.

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)                                         AR20090013084



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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