IN THE CASE OF:	  

		BOARD DATE:	    18 March 2010

		DOCKET NUMBER:  AR20090013596 


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

2.  The applicant does not make any statement or explanation why his UD should be upgraded to a GD.

3.  The applicant provides copies of his 1972 and 1976 DD Forms 214 (Report of Separation from Active Duty).

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 military records show he enlisted in the Regular Army (RA) in pay grade E-1 on 28 May 1971, for 3 years.  He completed training and was awarded military occupational specialty (MOS) 63H (Auto Repair).  He was advanced to pay grade E-4 on 7 February 1972.

3.  The applicant was honorably discharged on 19 June 1972 for the purpose of immediate reenlistment.  He reenlisted on 20 June 1972 for 6 years.

4.  The applicant was reported absent without leave (AWOL) on 10 August 1974. On 16 August 1974, he was convicted by the Superior Court, Muscogee County, GA and sentenced to 12 months confinement for possession of marijuana.  He was subsequently returned to military control on 16 December 1974.  He was again reported AWOL on 29 August 1975 and returned to military control on 26 September 1975.

5.  On 30 September 1975, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 29 August to 26 September 1975.  The punishment imposed was a forfeiture of $150.00 per month for two months, a reduction to pay grade E-2, and restriction and extra duty for 45 days.  He did not appeal the punishment.

6.  The applicant was reported AWOL on 30 September 1975 and dropped from the rolls (DFR) of the Army on the same day.  He was apprehended by civilian authorities and returned to military control on 23 December 1975.

7.  The applicant was reduced to pay grade E-1 on 15 January 1976.

8.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his records contained a copy of his DD Form 214 which shows that he was discharged in pay grade E-1 on 4 February 1976, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions and he was issued a UD Certificate.  He was credited with 2 years, 11 months, and 14 days total active service during the period under review and 241 days of lost time due to AWOL and confinement and was charged with 28 days of excess leave.

9.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.


10.  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.

11.  Army Regulation 635-200, paragraph 3-7b of the current version provides that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD to a GD.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The evidence of record shows the applicant accumulated a total of 241 days of lost time due to AWOL and confinement.  An absence of this duration is serious and there is insufficient evidence to show that the applicant now deserves an upgrade of his discharge.  The applicant has provided no evidence or a convincing argument to show his discharge should be upgraded and he also has not provided evidence sufficient to mitigate the character of his discharge.

3.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  In the absence of evidence to the contrary, Government regularity in the discharge process is presumed.

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 requested relief.

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)                                         AR20090013596



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ABCMR Record of Proceedings (cont)                                         AR20090013596



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