BOARD DATE:	  17 June 2010

		DOCKET NUMBER:  AR20090021986 


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 his undesirable discharge be upgraded.

2.  The applicant states:

* he made a big mistake
* he wants Department of Veterans Affairs (VA) benefits
* he made a stupid decision
* he was young and dumb
* he did not realize it would affect him in later years

3.  The applicant provides no documentary evidence 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 was born on 10 August 1952.  He enlisted in the Regular Army on 4 December 1970 for a period of 3 years.  He trained as a field artillery crewman.  On 20 December 1971, he was honorably discharged for immediate reenlistment.  He reenlisted on 21 December 1971 for a period of 3 years.  On 26 November 1974, he was honorably discharge for immediate reenlistment.  He reenlisted on 27 November 1974 for a period of 6 years.

3.  The applicant went absent without leave (AWOL) on 9 June 1976 and returned to military control on 19 June 1976.

4.  A DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice), dated 25 June 1976, shows nonjudicial punishment was imposed against the applicant for being AWOL from 9 June 1976 to 19 June 1976.  His punishment consisted of a reduction to E-3, forfeiture of pay, extra duty, and restriction.

5.  The applicant went AWOL on 28 June 1976.  He was apprehended by civil authorities and returned to military control on 3 September 1976.  On 8 September 1976, charges were preferred against the applicant for two AWOL periods (9 June 1976 to 19 June 1976 and 28 June 1976 to 3 September 1976).

6.  On 13 September 1976, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the VA, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated:

* he went AWOL due to personal reasons
* he hated the Army
* if he were returned to duty he would just go AWOL again
* he understood he would lose benefits and what an undesirable discharge was

7.  On 5 October 1976, the separation authority approved the applicant's request for discharge and directed that he be furnished an undesirable discharge.

8.  Accordingly, the applicant was discharged with an undesirable discharge on 19 October 1976 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 5 years and 8 months of creditable active service with 77 days of lost time.

9.  On 14 October 1982, the Army Discharge Review Board denied the applicant's request for a general discharge.

10.  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 VA 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.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  The applicant was 18 years old when he enlisted in the RA and he completed 5 1/2 years of service prior to being AWOL the first time.

2.  A discharge is not upgraded for the purpose of obtaining VA benefits.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of a trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  The applicant's record of service during his last enlistment included 77 days of lost time due to AWOL.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general 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)                                         AR20090021986



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ABCMR Record of Proceedings (cont)                                         AR20090021986



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