IN THE CASE OF:	

		BOARD DATE:	  29 April 2010

		DOCKET NUMBER:  AR20090018060 


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 has been an alcoholic for over 40 years
* he was intoxicated when he joined the Army at age 18
* after one week in basic training he went absent without leave (AWOL)
* he was arrested and sent back to Fort Gordon, Georgia and he went AWOL again
* he went to rehabilitation for one year (May 2008 to May 2009)
* he is still recovering 

3.  The applicant provides a copy of his DD Form 214 (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 April 1972 for a period of 
2 years.  While in basic combat training, he went AWOL on 9 May 1972.  Records show he returned to military control on 21 August 1972.  On 23 August 1972, charges were preferred against the applicant for the AWOL period.  Trial by special court-martial was recommended.  On 25 August 1972, the applicant submitted a request for discharge for the good of the service.  On 22 September 1972, the separation authority did not accept the applicant's request for discharge.     

3.  A charge sheet shows the applicant went AWOL on 9 May 1972 and returned to military control on 18 May 1972.  He went AWOL on 22 May 1972 and returned to military control on 21 August 1972.  He went AWOL again on 
2 October 1972 and returned to military control on 18 December 1972.  On 
21 December 1972, charges were preferred against the applicant for the AWOL periods.  Trial by special court-martial was recommended.

4.  On 21 December 1972, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.         

5.  On 9 January 1973, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge.

6.  Accordingly, the applicant was discharged with an undesirable discharge on 
12 January 1973 under the provisions of Army Regulation 635-200, chapter 
10, for the good of the service.  He had served a total of 2 months and 5 days of creditable active service with 178 days of lost time.  His DD Form 214 shows he was separated from the service on temporary records.      

7.  There is no evidence of record which shows the applicant was diagnosed with alcohol abuse or dependency prior to his discharge.  
8.  There is no indication in the available records which shows 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 the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.

10.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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.  Although the applicant contends that he had an alcohol problem while in the Army, there is no evidence of record which shows that he was diagnosed with alcohol abuse or dependency prior to his discharge or that he referred himself for treatment for alcohol problems.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.


4.  The applicant's brief record of service included 178 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an upgraded 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)                                         AR20090018060





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ABCMR Record of Proceedings (cont)                                         AR20090018060



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