IN THE CASE OF:	  

		BOARD DATE:	  22 June 2010

		DOCKET NUMBER:  AR20090018695 


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 under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states after he entered the Army his fiancée informed him she was pregnant and would have an abortion if he did not come home.  He went to his chain of command to get leave to go home, but he was denied.  In desperation, he went absent without leave (AWOL) in order to save the baby.  He adds today that child has grown into a wonderful woman who graduated from Purdue University and has a master's degree in child psychology.

3.  The applicant also states that after 30 years of very hard work, he finds himself with no health insurance.  He was recently diagnosed with stage four lung cancer and has little or no options.  He would like to have his discharge upgraded so he may seek treatment at his local Department of Veterans Affairs (VA) hospital.

4.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 15 January 1980; a San Joaquin General Hospital discharge form, dated 21 January 2010, and a Saint Joseph's Medical Center Radiology Consultation sheet, dated 29 January 2010.

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 26 February 1979.  He did not successfully complete basic combat training.

3.  A DD Form 458 (Charge Sheet), dated 4 December 1979, shows charges were preferred against the applicant for being AWOL for the period 30 March 1979 through 3 December 1979.

4.  On 7 December 1979, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life.  He waived the right to provide a statement in his own behalf.

5.  On 31 December 1979, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  He directed that the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.

6.  On 15 January 1980, the applicant was discharged with a characterization of service of under other than honorable conditions.  He had completed 2 months and 13 days of creditable active service with a total of 247 days of lost time due to being AWOL.

7.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 23 August 1983, the ADRB reviewed and denied the applicant's request for an upgrade.  The ADRB determined that the applicant's discharge was proper and equitable.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

9.  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.

10.  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 went AWOL to prevent his fiancée from having an abortion.  He claims he sought assistance from his chain of command, but he was denied leave.

2.  The applicant was a newly-enlisted Soldier undergoing basic combat training. 
Leave is almost never granted to Soldiers in basic training and, when it is granted, it is of short duration.  The Board accepts the applicant's contention he went AWOL to prevent his fiancée from having an abortion, but that reason is insufficient to warrant an upgrade of his discharge.

3.  The Board also accepts the applicant's statement that he is suffering from stage four lung cancer and is in need of VA medical benefits.  Unfortunately, he never earned those benefits, having served just 2 months and 13 days, and he never completed his initial entry training.

4.  Given his offense, the evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

5.  There is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____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)                                         AR20090018695



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ABCMR Record of Proceedings (cont)                                         AR20090018695



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