IN THE CASE OF:	

		BOARD DATE:	  06 April 2010

		DOCKET NUMBER:  AR20090015970 


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 his undesirable discharge be upgraded.  

2.  The applicant states he was young and dumb when the incident occurred.  He states he was given a choice of either going to jail or entering the military so he chose the military.  He was unhappily stationed stateside when his older brothers were overseas.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 enlisted in the Regular Army on 29 September 1971 at 17 years old.  

3.  On 10 July 1972, charges were preferred against the applicant for being absent without leave (AWOL) on four separate occasions from 22 February to 24 February 1972, 2 March to 9 March 1972, 10 March to 30 April 1972, and 
1 May to 9 July 1972.  

4.  On 22 September 1972, the applicant was charged with being AWOL from 
5 September to 21 September 1972.  

5.  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 submitted statements in his own behalf.  

6.  In support of his chapter 10 request for discharge, the applicant stated he wanted a discharge to help his mother and the rest of his family.  He stated he had two brothers in the Army and they helped his mother financially.  The applicant continued to state he wanted to get a job, but none were available.  He explained that if he did not get a discharge he would continue to go AWOL and he also stated he could not adjust to military life.

7.  On 7 November 1972, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 10 with the issuance of an Undesirable Discharge Certificate.

8.  The applicant was discharged from active duty on 15 November 1972 under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an undesirable discharge.  He had completed 8 months and 24 days of active military service with 145 days of lost time due to being AWOL.  

9.  On 6 October 1975, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.  

10.  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.

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.  The applicant contends he was young and dumb when the incident occurred.  However, these factors are not sufficiently mitigating to grant the relief requested.

2.  The applicant's voluntary request for discharge 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 was charged with being AWOL on five separate occasions for a total of 145 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.  

4.  The evidence of 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)                                         AR20090015970



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ABCMR Record of Proceedings (cont)                                         AR20090015970



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