IN THE CASE OF:	  

		BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20100007122 


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 under honorable conditions.

2.  The applicant states item 30 (Remarks) on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the entry “10 years – General” and he would like to know if this means his discharge was upgraded to general.  

3.  The applicant provides a copy of his DD Form 214 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.  He was inducted into the Army of the United States on 4 December 1970.  

3.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date ETS) on his DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) during the following periods:

* 29 April 1971 to 27 May 1971
* 28 May 1971 to 4 August 1971
* 11 August 1971 to 16 November 1971
* 12 January 1972 to 26 January 1972

4.  Item 32 (Civilian Education) on his DA Form 20 shows he completed 10 years of education.  

5.  The applicant’s discharge packet is not available.  However, his DD Form 214 shows he was discharged on 26 January 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with an under other than honorable conditions (undesirable) discharge.  He completed 6 months and 22 days of creditable active service with 211 days of lost time due to being AWOL.  Also, item 30 shows the entry “10 Years – General” which indicates he completed 10 years of education.  

6.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes 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 is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

8.  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.


9.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  The version in effect at the time states the highest civilian education level attained would be entered as the first entry in Block 30 when not adequately covered in block 25.  This information would be taken from 
DA Form 20.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s question as to whether the entry in item 30 on his DD Form 214 means his discharge was upgraded to general is acknowledged.  However, the entry “10 years – General” in item 30 indicates the highest grade the applicant completed, not that his discharge was upgraded to general.  

2.  In the absence of the applicant's chapter 10 discharge proceedings, 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 is presumed to have been administratively correct and in conformance with applicable regulations.

3.  Although the applicant's discharge packet is not available, it is presumed the separation authority appropriately directed the issuance of an undesirable discharge based on his overall record of service.

4.  The applicant’s service records show 211 days of lost time based on his periods of AWOL.  As a result, his service record was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the evidence is not sufficient to support upgrading the applicant’s discharge.

5.  The evidence of record does not indicate the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for an upgrade of his undesirable discharge to a general discharge under honorable conditions.

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)                                         AR20100007122



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ABCMR Record of Proceedings (cont)                                         AR20100007122



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