IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20100000568 


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 to a general discharge.

2.  The applicant states he was assigned to a unit at Fort Bragg, NC and he reported on time.  He states he reported to the wrong unit at Fort Bragg and didn't find out about it until 28 days later.  He states the Article 15 under the Uniform Code of Military Justice (UCMJ) he received for 28 days of being absent without leave (AWOL) was unfair because he was on Fort Bragg with another unit.  He states he was demoted, received extra duty, and his pay was cut in half. He states he stayed under these conditions for 2 weeks and became disenchanted and he went AWOL to his home for about 88 days.  He states he felt an injustice had been done for punishing him for the 28 days AWOL.  He states he would like the whole incident at Fort Bragg to be reconsidered as to the type of punishment he received.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of 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.  The applicant's military personnel records show he enlisted in the Regular Army on 1 March 1971 for a period of 2 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 72C (Telephone Switchboard Operator).

3.  The applicant's records show a period of AWOL during the period 2-8 June 1971.  There is no disposition in his Military Personnel Records Jacket (MPRJ) for this period of AWOL.

4.  On 1 September 1971, the applicant was assigned to Headquarters and Headquarters Company (HHC), 426th Signal Battalion at Fort Bragg.

5.  A DA Form 188 (Extract Copy of Morning Report), dated 17 Jan 1972, from HHC, 426th Signal Battalion reports the applicant departed AWOL on 
16 September 1971 and he surrendered to HHC, 426th Signal Battalion on 
14 October 1971.

6.  On 22 October 1971, the applicant accepted nonjudicial punishment (NJP) under Article 15, UCMJ from his commander, a lieutenant colonel, for being AWOL from on or about 16 September 1971 to on or about 14 October 1971.  His punishment consisted of reduction to private/pay grade E-1, forfeiture of $70 per month for two months, 45 days restriction, and 45 days extra duty.  The applicant did not appeal his punishment.

7.  A DA Form 188, dated 28 January 1972, from HHC, 426th Signal Battalion reports the applicant again departed AWOL on 23 November 1971.  

8.  A DA Form 188, dated 28 January 1972, from U.S. Army Personnel Control Facility, Fort Riley, KS reports the applicant surrendered to military authorities on 6 January 1972.

9.  On 17 January 1972, court-martial charges were preferred against the applicant for being AWOL during the period from on or about 23 November 1971 to on or about 6 January 1972.

10.  On 4 February 1972, the applicant voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* making the request of his own free will
* afforded the opportunity to speak with counsel prior to making this request
* advised he may be furnished an Undesirable Discharge Certificate

11.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits 
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

12.  The applicant submitted a statement with his request wherein he stated if he was refused a discharge he would just go AWOL again because he couldn't stand the Army.

13.  A captain of the Judge Advocate General's Corps countersigned the applicant's request and attested that he had counseled the applicant concerning the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Code of Military Justice; of the possible effects of an undesirable discharge, if his request is approved; and of the procedures and rights available to him.

14.  On 18 February 1972, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that the applicant be furnished an Undesirable Discharge Certificate.

15.  The records show the applicant again departed AWOL on 2 March 1972.  He never returned to military control.

16.  On 10 March 1972, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200 for the good of the service with an undesirable discharge.  He had completed 9 months and 12 days of active service that was characterized as under conditions other than honorable.  He had 88 days of lost time.


17.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

18.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included 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 was normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.  

19.  Army Regulation 635-200 states a Soldier may be separated without return to military control if he is absent without authority after receiving notice of initiation of separation processing.

20.  Army Regulation 635-200 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.  The applicant contends he had reported to the wrong unit at Fort Bragg and didn't find out until 28 days later, thereby making his punishment for 28 days AWOL unjust because he was on post.

2.  The applicant's MPRJ shows he reported to HHC, 426th Signal Battalion at Fort Bragg and then departed AWOL 15 days later.  There is no substantiating evidence the applicant was ever assigned to a unit other than HHC, 426th Signal Battalion while he was at Fort Bragg.  Therefore his contention of being in the wrong unit is not supported by the evidence and his request that his punishment be reconsidered is spurious.

3.  In his request for discharge for the good of the service, the applicant stated he would continue to go AWOL if his discharge was not approved.  He acknowledged he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He also acknowledged he could be deprived of many or all Army and veterans benefits as a result of such discharge.  

4.  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.  

5.  The applicant had 88 days of time lost and he had indicated he would continue to go AWOL if he was not discharged.  After his request for discharge was approved he again went AWOL and was discharged without returning to military control.  His continued periods of AWOL clearly show his service to be unsatisfactory.  Therefore, there is no basis to upgrade his discharge to 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)                                         AR20100000568





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ABCMR Record of Proceedings (cont)                                         AR20100000568



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