IN THE CASE OF:	  

		BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090020780 


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 an honorable discharge.  

2.  The applicant states the following:

* He joined the Army 3 days after his 17th birthday not knowing what to 
expect
* He was sent to advanced individual training where he began to get into
 trouble
* He was caught with marijuana, failed a class, and given an Article 15
* He faced problems with his pay at Fort Hood and his mother was 
dependent on the money he sent her
* He decided to go home and get a job because he was not getting any help
* He returned to Fort Hood and decided to take the easy way out
* He was too young and immature to understand how this discharge would 
affect him later in life

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) 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 17 June 1974 at the age of 17.  He completed basic combat training at Fort Polk, LA and was reassigned to Fort Sill, OK for advanced individual training.

3.  On 9 October 1974, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for possessing marijuana.

4.  The applicant was reassigned to Fort Polk to complete advanced individual training.  After completion of training, he was assigned to Fort Hood, TX.  

5.  On 3 October 1975, charges were preferred against the applicant for being absent without leave (AWOL) from 30 June 1975 to 23 September 1975.

6.  The applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life.  He also acknowledged that he might be ineligible for many or all Army benefits administered by the Veterans Administration (VA) if an undesirable discharge was issued.  He did not submit statements in his own behalf.

7.  On 5 December 1975, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 with issuance of an Undesirable Discharge Certificate.

8.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was AWOL from 10 January 1970 to 23 January 1976 and this period of AWOL is recorded on his DD Form 214.  His service record does not show he received nonjudicial punishment for this period of AWOL.  

9.  The applicant was discharged from active duty on 23 January 1976 under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an undesirable discharge.  He had completed 1 year and 4 months of active military service with 99 days of lost time due to AWOL.  
10.  The applicant’s service record does not indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.

11.  Army Regulation 635-200 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 trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

12.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he was too young and immature during the time in question are noted.  However, age is not sufficiently mitigating to grant relief in this case.  

2.  The applicant’s statements regarding his personal family problems were acknowledged.  However, the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct (AWOL) which led to his discharge.  While the Board is empathetic, the applicant's personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  No evidence of record indicates the request was made under coercion or duress.

4.  The applicant's record of service shows he received one Article 15 and was AWOL for 99 days.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time also renders his service unsatisfactory.  Therefore, he is not entitled to either a general discharge or an honorable discharge.

5.  The evidence of record does not indicate the actions taken in his case were in error or unjust, therefore, there is no basis for granting the applicant's request for an upgrade of his 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)                                         AR20090020780





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ABCMR Record of Proceedings (cont)                                         AR20090020780



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