IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100014128 


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 under honorable conditions.

2.  The applicant states he recently noticed that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) states "10 years - General."  He is not sure that this ever happened and is now asking that his discharge be upgraded to a minimum characterization of general under honorable conditions.

3.  The applicant provides a copy of his DD Form 214.

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 records show:

	a.  he completed 2 years of high school in 1968 [10 years total],

	b.  he enlisted in the Regular Army on 5 September 1969,

	c.  he was advanced to private first class on 22 April 1970, and

	d.  he was absent without leave (AWOL) from 15 November 1970 to 30 January 1972 and from 9 to 20 March 1972 (430 days).

3.  The applicant completed a Statement of AWOL, undated, wherein he acknowledged his right to counsel and representation by any other person, to include either a military or civilian lawyer.  He elected not to be represented and waived his right to consult with an attorney.  In a separate document he further elected to waive a board of officers, to waive personal appearance before such a board, and to waive representation by his appointed counsel.

4.  In a mental status evaluation the applicant's behavior was described as normal.  He was fully alert and oriented and displayed a level mood.  His thinking process was clear, his thought content was normal, and his memory was good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.  He had the mental capacity to understand and participate in board proceedings and met the medical retention standards.

5.  The applicant's commander recommended that the applicant be separated from the Army due to AWOL in excess of 1 year under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct).  The commander recommended that an Undesirable Discharge Certificate be issued.

6.  The appropriate authority approved the recommendation for discharge and directed that he be issued an Undesirable Discharge Certificate.

7.  Accordingly, he was discharged under conditions other than honorable on 20 March 1972.  He completed a total of 1 year, 4 months, and 5 days of creditable active service and had 430 days of lost time due to AWOL.

8.  Item 30 (Remarks) of the applicant's DD Form 214 shows "10 years - General" as the first remark.

9.  On 15 July 1980, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct to include AWOL.  That regulation provided for the elimination of enlisted personnel when action taken against them was tantamount to a finding of guilty for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year.

11.  Under the Uniform Code of Military Justice, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

12.  Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing the DD Form 214.  It provided that the first entry in item 30 of the DD Form 214 would be the highest civilian education level attained by the Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant implies that his undesirable discharge should be upgraded based on the first entry in item 30 of his DD Form 214.  It appears that he interprets this entry to mean his discharge would be automatically upgraded after 10 years.

2.  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 therefore appropriate considering all of the facts of the case.

3.  The first entry in item 30 of the applicant's DD Form 214 refers to his civilian education and indicates that he completed 10 years of general education.

4.  There is no policy, regulation, directive, or law that provides for the automatic upgrade of a less than honorable discharge from military service.

5.  Based on his lengthy AWOL, the applicant's service clearly did not meet the standards of acceptable conduct for Army personnel.  This lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's request.



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 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)                                         AR20100014128



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)