BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20090020842 


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 general discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states he went absent without leave (AWOL) to support his family during a family crisis as he was an only child.  As soon as he had the situation under control he returned to his command, forfeited pay, and served his time.  He is requesting an upgrade to qualify for admission to a [presumably Iowa state] veteran's home.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces on the United States Report of Transfer or Discharge).

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 7 October 1965, the applicant was inducted into the Army of the United States at the age of 18 with a 10th grade education.  He completed basic combat and advanced individual training and he was awarded the military occupational specialty 12A (Pioneer).  He further completed basic airborne training.

3.  On 7 April 1967, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from
15 December 1966 through 14 January 1967.  His punishment was a forfeiture of $30.00 pay per month for one month.

4.  On 5 December 1967, he was released from active duty with a general, under honorable conditions discharge.  He was transferred to the U.S. Army Reserve (USAR) to complete his remaining Reserve obligation.

5.  His DA Form 20 (Enlisted Qualification Record) shows he predominantly received "excellent" conduct and efficiency ratings, except one period of service from where he received a "fair" conduct and efficiency rating.

6.  His DD Form 214 provides the following information:

	a.  service from 7 October 1965 through 5 December 1967 (2 years, 1 month and 29 days);

	b.  2 years and 1 day of creditable service;

	c.  30 days of non pay period of time lost;

	d.  "60" days of time lost under Title 10, U.S. Code (USC), section 972; and

	e.  separation under Army Regulation 635-200, chapter 2 (Expiration of Term of Service) with a separation program number of 201 (Expiration of Term of Service);

7.  The record contains no documentation of any disciplinary actions other than the NJP for his period of AWOL.

8.  A review of the admissions requirements for the Iowa Veteran's Homes, found on the internet, states:  "Admissions to the Iowa Veteran's Home are limited to honorably discharged veterans eligible for care and treatment at Department of Veterans Affairs facilities."  Under Department of Veterans Affairs terminology an honorably discharged veteran includes those with both honorable and general discharges.

9.  Title 10, U.S. Code, section 972 states that an enlisted member of an armed force who is absent from his organization, station, or duty for more than one day without proper authority, as determined by competent authority, is to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted.

10.  Army Regulation 635-200 (Enlisted Personnel Separations), then in effect, stated at:

	a.  paragraph 1-9d(1), "An honorable discharge is a separation with honor.  Issuance of an honorable discharge will be conditional upon proper military behavior and proficient performance of duty during a member's current enlistment with due consideration for the member's age, length of service, grade, and general aptitude….Where there have been infractions of discipline, the extent thereof should be considered as well as the seriousness of the offense….A member will not be denied an honorable discharge solely by reason of a specific number of convictions by courts-martial or actions under Article 15 of the UCMJ.  It is the pattern of behavior and not the isolated instance which should be considered the governing factor in determination of the character of service to be awarded."

	b.  paragraph 1-9d(2), "A member's service will be characterized as honorable by the commanding officer authorized to take such action or higher authority when a member is eligible for or subject to separation and it has been determined that he merits an honorable discharge under the following standards:

		(1)  has conduct ratings of at least "Good";
		(2)  has efficiency ratings of at least "Fair";
		(3)  has not been convicted by a general court-martial;
		(4)  has not been convicted more than once by a special court-martial."

	c.  paragraph 1-9d(3),  "Notwithstanding the foregoing criteria, an honorable discharge may be furnished when disqualifying entries in the individual's military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service.  Careful consideration will be given to the nature of the offense and sentence adjudged by a court-martial and when in the opinion of the office effecting discharge these have not been too 
serious and severe, and the remainder of the service in the enlistment had been such that an honorable discharge would have been granted, had the conviction not occurred, an honorable discharge may be awarded.  When there is doubt as to whether an honorable or general discharge should be furnished, the doubt should be resolved in favor of the individual;" and 
	d.  under this regulation, as is currently in effect, only the honorable characterization may be awarded a member upon completion of his/her period of enlistment or period for which called or ordered to active duty.

11.  The Manual for Courts-Martial (MCM), Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he went AWOL to support his family during a family crisis.  As soon as he had the situation under control he returned to his command, forfeited pay, and served his time.  He is requesting the upgrade to qualify for admission to a veteran's home.  

2.  Under regulations in effect at the time of his separation, the applicant's command elected to issue him a general characterization of service.

3.  He had one period where his conduct and efficiency rating was listed as "fair," the period that included his NJP.  Because of this "fair" rating he did not qualify for an award of an honorable characterization of service.

4.  The applicant has not provided and the record does not contain any documentation related to the alleged incident that prompted him to go AWOL.

5.  He had no court-martials and only the one NJP, for which his punishment was relatively minor, a $30.00 forfeiture of pay.  He also made up the period of lost time from his AWOL.

6.  The applicant specifically requested the upgrade to seek admission in a Veteran's Home.  Based on the admission eligibility requirements in IOWA, his current characterization of service meets the eligibility requirements.  Therefore, the applicant is advised to seek further information from his local VA representative.

7.  In view of the foregoing, it cannot be shown that the characterization of service was in error, unjust, or inequitable.  Therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20090020842



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ABCMR Record of Proceedings (cont)                                         AR20090020842



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