IN THE CASE OF:	  

		BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090018873 


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 general.

2.  The applicant states that he has been a productive member of society for the last 40 years.  He has raised two children, one of whom is in college.  He has overcome the problems he had while in the military.  Currently, he is working at Restoration House where he counsels others about their issues.  He attends church and has cleaned up his life.  His discharge has caused him hardship.

3.  The applicant provides, in support of his application, copies of 18 letters of support.

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.  On 21 October 1969, the applicant was inducted into the Army of the United States for 2 years.  He completed basic combat training at Fort Dix, New Jersey and was subsequently assigned to Fort Gordon, Georgia, for on-the-job training in food service.

3.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Qualification Record) shows:

	a.  confinement from 19 March to 14 May 1970;

	b.  absent without leave (AWOL) from 15 May to 8 June 1970;

	c.  absent without leave (AWOL) from 19 August to 28 September 1970; and

	c.  confinement on 29 September 1970.

4.  On 2 July 1970, the applicant was convicted by special court-martial of AWOL during the period from on or about 15 May to 9 June 1970.  His sentence consisted of confinement at hard labor for 90 days and forfeiture of $30.00 pay per month for 3 months.

5.  On 13 November 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge.

6.  On 24 November 1970, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from on or about 19 August to 29 September 1970.

7.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, and that he could receive an UOTHC discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge.




8.  On 10 December 1970, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 18 December 1970, the applicant was discharged accordingly.  He had completed a total of 7 months and 4 days of creditable active military service and had accrued 202 days of time lost due to AWOL and confinement.

9.  On 16 November 1981, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

10.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

11.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

12.  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.

13.  The letters of support, provided by the applicant, from his employer, ministers, and friends, essentially state that he is a great role model for anyone to follow.  He is honest, respected, and a leader.  He is an invaluable asset to his employers.  He is a fine and outstanding father, husband and community member, who does his best to be as helpful as possible whatever the situation.  The applicant is a church member and an upstanding citizen of the community.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that because he has been a productive member of society for the last 40 years, his undesirable discharge should be upgraded to general.


2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant’s claim of good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.

4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, the applicant's request should be denied.
 
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)                                         AR20090018873





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ABCMR Record of Proceedings (cont)                                         AR20090018873



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