BOARD DATE:	  6 April 2010

		DOCKET NUMBER:  AR20090014400 


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, in effect, he was absent without leave (AWOL) because he was the sole surviving son.  

3.  The applicant provides a VA Form 21-4138 (Statement in Support of Claim), dated 16 August 2009, 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 inducted into the Army of the United States on 13 July 1972.  

3.  On 13 September 1972, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for being AWOL from 10 September to 12 September 1972.  

4.  Charges were preferred against the applicant on 18 August 1976 for being AWOL from 20 August 1973 to 10 August 1976, a period of 1,088 days.

5.  On 19 August 1976, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life.  He also acknowledged that he might be ineligible for many or all Army benefits administered by the Veterans Administration (VA) if an undesirable discharge was issued.  He did not submit statements in his own behalf.

6.  On 8 September 1976, the separation authority approved the discharge action under the provisions of Army Regulation 635-200, chapter 10 with the issuance of an Undesirable Discharge Certificate.

7.  The applicant was discharged on 15 September 1976 under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an undesirable discharge.  He had completed 1 year, 2 months, and 10 days of active military service with 1,088 days of lost time due to being AWOL.  

8.  There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

9.  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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

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.

12.  Army Regulation 614-200 (Enlisted Assignments and Utilization Management) prescribes the reporting, selection, assignment, and utilization of Active Army enlisted personnel, excluding initial entry training Soldiers who are governed by Army Regulation 612–201.  It states that a sole surviving son and/or daughter is the only remaining son or daughter in a family where the father, or mother (or one or more sons or daughters), served in the Armed Forces of the United States and because of hazards with such military service – (1) was killed; (2) died as a result of wounds, accident, or disease; is in a captured or missing in action status; and is permanently 100 percent physically disabled (including 100-percent mental disability), as determined by the VA or one of the military services.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention he was AWOL because he was the sole surviving son is acknowledged.  However, the evidence of record does not confirm he was a sole surviving son.  There is no evidence he brought this issue to his command's attention.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  The applicant’s service record does not indicate the request was made under coercion or duress.

3.  The applicant's record of service shows he received one Article 15 for being AWOL for 3 days, and he then went AWOL for 1,088 days.  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/lost time also renders  his service unsatisfactory.  Therefore, he is not entitled to either a general discharge under honorable conditions or a fully honorable discharge.

4.  The applicant’s service record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for 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)                                         AR20090014400



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ABCMR Record of Proceedings (cont)                                         AR20090014400



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