IN THE CASE OF:	  

		BOARD DATE:	  8 April 2010


		DOCKET NUMBER:  AR20090017260 


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, in effect, an upgrade of his undesirable discharge (UD).

2.  The applicant states, in effect, when he entered the military he had a damaged spinal cord and the bone stopped growing after the injury occurred.  He entered the military with an injury that did not heal properly, and he was issued a UD.  Yes, he did go absent without leave (AWOL) because something else was going on in his life at the time.  He had no business being in the Army.  

3.  The applicant provides no additional documentation 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 records show he enlisted in the Regular Army in pay grade E-1 on 10 September 1973, for 2 years.  He completed training and was awarded military occupational specialty 91B (Medical Specialist).  

3.  On 19 November 1973, the applicant accepted punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty on 12 November 1973.  His punishment included a forfeiture of $50.00 pay for 1 month.

4.  The applicant was advanced to pay grade E-2 on 5 January 1974, the highest grade he held during his period of service.

5.  On 7 February 1974, the applicant accepted punishment under Article 15, UCMJ, for being AWOL on 6 February 1974.  His punishment included a forfeiture of $35.00 pay for 1 month and 5 days of extra duty.

6.  On 7 February 1975, a DD Form 458 (Charge Sheet) was prepared by the Commander, US Army Personnel Control Facility, Fort George G. Meade, Maryland.  The applicant was charged with one specification of being AWOL from 10 June 1974 to 30 January 1975.

7.  On 10 February 1975, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged under other than honorable conditions and furnished a UD Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected to submit a statement in his own behalf.

8.  In a statement, dated 25 February September 1975, the applicant indicated that he wanted to get out of the Army.  He was going through a lot of changes.  When he went home in June 1974, his family took notice of what had happened to him.  



9.  On 3 March 1975, the applicant's unit commander recommended approval of the applicant's request for discharge with the issuance of a UD Certificate.  

10.  On 11 March 1975, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that a UD Certificate be issued and that the applicant be reduced to pay grade E-1.

11.  The applicant was discharged in pay grade E-1, on 21 March 1975, for the good of the service in lieu of trial by court-martial with a UD.  He was credited with 10 months and 14 days of net active service and 238 days of lost time due to being AWOL.

12.  There is no evidence the applicant requested assistance through his chain of command for any medical condition which prevented him from completing his period of service.  His records are absent any evidence of awards for meritorious achievement or performance during his period of service.

13.  On 14 November 1977, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 specified that a member who had committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges had been preferred, could submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time, a UD was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

15.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

16.  Army Regulation 635-200, paragraph 3-7b, 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.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant's contentions were considered; however, they are not supported by the evidence and do not support an upgrade of his UD.  There is no evidence he enlisted in the Regular Army with a medical condition which prevented him from satisfactorily serving his term of enlistment.  Additionally, the applicant has submitted no evidence to show any medical conditions led to the interruption of his service.

3.  The evidence shows the applicant was punished under Article 15 of the UCMJ for being AWOL (twice).  He was charged with one specification of being AWOL from 10 June 1974 to 30 January 1975.  Upon his return to military control, he voluntarily requested discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged and advised his unit commander that he desired to be discharged from the Army.  The applicant also acknowledged he understood he could be furnished a UD Certificate.  He stated that he wanted out of the Army.  

4.  The applicant has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

5.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.

6.  In view of the foregoing, there is no basis for granting the applicant's request.








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)                                         AR20090017260



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ABCMR Record of Proceedings (cont)                                         AR20090017260


   
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