IN THE CASE OF:	  

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090013857 


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 at least a general discharge.

2.  The applicant states that at the time of his separation he was barely 20 years of age and his wife had their third child.  He was under a lot of pressure to be at home to help his wife and three small children.  He goes on to state that he now realizes that he could have been a good father and continued to serve, and that he should have spoken to his superiors about his concerns.  He also states that he has lived with this shame for years and he wants his family to be proud of him.  Accordingly, he is asking for forgiveness and an upgrade of his discharge.

3.  The applicant provides a copy of a birth certificate for his third child.

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 23 February 1950 and indicated that he was single with no dependents when he enlisted in St. Louis, Missouri, on 7 July 1969 for a period of 3 years and training in the automotive maintenance career management field.  He completed his training and was assigned to Fort Benning, Georgia, for duty as a general vehicle repairman.

3.  On 2 March 1970, he departed Fort Benning with orders to report to Fort Dix, New Jersey, on 21 March 1970 for further assignment to Germany.

4.  The applicant did not report as ordered and was reported as being absent without leave (AWOL).  He remained absent in desertion until he was returned to military control at Fort Leonard Wood, Missouri, on 4 June 1971 and charges were preferred against him.  At the time of his return he indicated that he was single with three children.

5.  The applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct) for misconduct based on his prolonged unauthorized absence of more than 1 year (desertion).

6.  After consulting with defense counsel, the applicant waived all of his rights and declined the opportunity to submit a statement in his own behalf.  He also acknowledged that he understood that up until the date the appropriate authority approved his discharge, he could withdraw his waiver and request that a board of officers hear his case.

7.  The appropriate authority approved the recommendation for discharge on 7 July 1971 and directed that he be furnished an Undesirable Discharge Certificate.

8.  On 23 July 1971, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-206 for misconduct based on his prolonged unauthorized absence of more than 1 year (desertion).  He had served 10 months and 4 days of active service and had 440 days of lost time due to AWOL.

9.  On 24 August 1981, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended at that time that he deserved an upgrade of his discharge because, with the exception of receiving one Article 15 and his personal problems, he was an otherwise good Soldier.  He also stated that at the time he needed leave time at home to get insight into the scope of his family problems, that he has not been in trouble since his discharge, and he has served in various law enforcement positions.  On 17 September 1982, the ADRB determined that his discharge was both proper and equitable and voted unanimously to deny his request for an upgrade of his discharge.

10.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 30 of the regulation provided, in pertinent part, that members may be discharged for desertion or AWOL when the unauthorized absence had continued for 1 year or more and retention is not considered desirable or in the best interests of the government.  An undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and desertion or AWOL.  A discharge under other than honorable conditions is normally considered appropriate.

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.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board 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.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.

3.  Accordingly, the type of discharge directed and the reasons were therefore appropriate considering all of the available facts of the case.

4.  The applicant's contentions and supporting statements have been noted by the Board.  However, given the extensive length of his absence, the lack of mitigating circumstances presented at the time, and his overall undistinguished record of service, they are not sufficiently mitigating to warrant an upgrade of his discharge.

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)                                         AR20090013857



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR