IN THE CASE OF:	

		BOARD DATE:	  08 June 2010

		DOCKET NUMBER:  AR20090020928 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states he went absent without leave (AWOL) to assist his mother with his abusive, alcoholic father.  He regrets his decision and he has turned his life around.  He is asking that his discharge be upgraded based on clemency.

3.  The applicant provides his employment history, five letters of recommendation and support, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and his Undesirable Discharge Certificate.

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 11 January 1971, the applicant enlisted in the Regular Army for 2 years.  He completed his initial training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's records show he was reported AWOL on 31 January 1972 and he was subsequently dropped from the rolls (DFR) of the Army on
29 February 1972.  He was apprehended and returned on military control on
22 July 1972.

4.  The discharge packet is missing from his military records.  However, his records contain a copy of his duly constituted DD Form 214 that shows he was administratively discharged on 15 August 1972 under the provisions of Army Regulation 600-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  His service was characterized as under conditions other than honorable and he was issued an Undesirable Discharge Certificate).  He completed 1 year, 1 month, and 17 days of creditable active service and he had 170 days of time lost.

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

6.  The applicant provides a copy of his employment history which shows he missed 13 days of work and was late five times in 11 years.  In addition he submits 5 letters of support that essentially state he is remorseful for his actions and he was a good Soldier faced with a difficult situation.  Further, he has become an active member of his church and community, a foster parent, and a good citizen who loves his country.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who 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 at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.  

8.  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.

9.  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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9, provides that the Board begins its consideration of each case with the presumption of administrative regularity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for clemency in regard to having his discharge upgraded was carefully considered; however, there is insufficient evidence to grant relief.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  Notwithstanding the applicant's claim that he went AWOL to essentially protect his mother from his abusive and alcoholic father, there is no available evidence to support his AWOL was a reasonable solution this situation.

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

5.  In view of the foregoing, 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)                                         AR20090020928



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ABCMR Record of Proceedings (cont)                                         AR20090020928



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