IN THE CASE OF:	  

		BOARD DATE:	  22 June 2010

		DOCKET NUMBER:  AR20090020851 


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 the mother of his children had abandoned them and they were in a foster home.  He needed to take care of them and went home.  While taking care of his family problems, he was in a car accident and spent 14 months in Womack Army Hospital.  While waiting on his disability status, he decided to resign from the Army to go home to care for his family.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and his discharge orders.

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 17 December 1968, the applicant enlisted in the Regular Army for 2 years.  He completed his initial training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL):

	a.  from 9 to 12 February 1969,

	b.  from 13 December 1969 to 22 February 1970,

	c.  from 29 February 1970 to 2 March 1970,

	d.  from 7 to 8 March 1970,

	e.  from 29 March 1970 to 25 September 1970,

	f.  from 28 December 1970 to 17 January 1971, and

	g.  from 25 February 1971 to 21 June 1971.

4.  The applicant's service records show he accepted two nonjudicial punishments for AWOL in February 1969 and again in late February 1970.  He was convicted by a summary court-martial for his AWOL from 13 December 1969 to 22 February 1970.  The available records do not contain any record of punishment for the remaining periods of AWOL listed above.

5.  On 2 July 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial.  He was informed that the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ) for his misconduct included a bad conduct or dishonorable discharge.  He was also counseled on the possible effects of an under other than honorable conditions (UOTHC) discharge and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

6.  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 UCMJ and that he could receive a 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 a UOTHC discharge.

7.  The separation authority approved the applicant's request for discharge and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate).  On 10 September 1971, the applicant was discharged accordingly.  He had completed a total of 1 year, 8 months, and 6 days of creditable active military service and had accrued 378 days of time lost.

8.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200, as in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 provided that a member who had 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 in lieu of trial by court-martial at any time after the charges had been preferred.  An undesirable discharge was normally considered appropriate.

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.
11.  Army Regulation 15-185 (Army Board for Correction of Military Records) paragraph 2-9, provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to general because he had family problems that led to his AWOL.

2.  The applicant's defense counsel statement advising him that his contemplated court-martial could result in a punitive discharge is evidence that he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of a trial by court-martial.

3.  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 were appropriate considering all the facts of the case.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

5.  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.

6.  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)                                         AR20090020851



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ABCMR Record of Proceedings (cont)                                         AR20090020851



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