IN THE CASE OF:	

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090016651 


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 a general discharge under honorable conditions.  

2.  The applicant states his discharge was based on one isolated incident in his nearly 2 years of service and he had no other adverse actions.  He states he was immature and did not realize his offense would have a serious effect on his military service.

3.  The applicant provides no additional evidence 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's military personnel records show he initially enlisted in the Regular Army on 12 May 1971 for 3 years at the age of 18 and a half.  He immediately reenlisted on 14 March 1972 for 3 years.

3.  On 22 May 1972, the applicant was assigned to the 82nd Engineer Battalion in Germany.

4.  On 20 September 1972, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for two specifications of failure to go to his appointed place of duty at the prescribed time.

5.  The applicant was absent without leave (AWOL) from 20 September 1972 
to 3 November 1972.

6.  The facts and circumstances pertaining to the applicant’s discharge were not available for review.

7.  On 3 January 1973, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200, for the good of the service with an undesirable discharge.  He had completed 1 year, 4 months and 17 days of creditable active service and he had 45 days of lost time.

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

9.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included 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 was normally considered appropriate.  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 (emphasis added), 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 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded to a general discharge under honorable conditions.  He also contends he was immature at the time and did not realize how his military service would be affected and that he had no other adverse actions during his period of service.  However, he accepted NJP on one occasion prior to going AWOL.

2.  The applicant’s age was considered.  At the time he went AWOL, he was 
2 months short of his 20th birthday and he had completed over 1 year of military service.  He was no younger than other Soldiers who successfully completed their military service obligations.  Therefore, his age cannot be used as a reason to change a properly issued discharge.  In addition, it is reasonable to presume he was well aware of the adverse impact of going AWOL would have on his military service.  

3.  Although the applicant's separation packet is not available, in order for him to be discharged under the provisions of Chapter 10 of Army Regulation 635-200, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge.  The applicant would have voluntarily requested discharge and acknowledged that he could receive an undesirable discharge and the impact of receiving such a discharge.  

4.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is presumed that the type of discharge and the reason for separation were appropriate considering his overall record of service.  

5.  In view of the foregoing, there is insufficient evidence to upgrade the applicant's undesirable discharge to a general discharge under honorable conditions or to an honorable 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)                                         AR20090016651



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ABCMR Record of Proceedings (cont)                                         AR20090016651



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