IN THE CASE OF:	  

		BOARD DATE:	  22 July 2010

		DOCKET NUMBER:  AR20100007468 


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 an honorable or a general discharge.

2.  The applicant states that he was young and immature at the time.  He joined the Army with expectations of bettering himself and serving his country.  However, he went home on leave because his father had undergone open heart surgery and was near death.  He contacted his unit for leave and he was shown no sympathy.  He was unsure what he should do and decided to stay home to help his family take care of his father.  Now he is older and he has a family.  He realizes that he made a mistake and he needs help.  He asks the Board to look beyond the one mistake he made so that he may die a proud man.

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 he was born on 29 October 1956 and enlisted in the Regular Army at nearly 19 years of age for a period of 2 years on 19 June 1974.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63C (Tracked Vehicle Mechanic). 

3.  Subsequent to completion of MOS training, he was placed on assignment to Germany effective 24 October 1974.  He was assigned to the 6th Personnel and Administration Battalion.

4.  On 20 November 1974, he went into an absent without leave (AWOL) status but he surrendered to military authorities at Fort Hood, TX, on 27 November 1974.  He was assigned to the U.S. Army Personnel Control Facility (USAPCF), Fort Hood, TX.

5.  On 9 January 1974, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 20-27 November 1974 and on or about 2 December 1974.  His punishment consisted of a forfeiture of $30.00 pay.

6.  His records show effective 31 January 1975, he was further reassigned to the Self-Propelled Battery, Field Artillery School Brigade, Fort Sill, OK.  

7.  On 3 March 1975, he departed his unit in an AWOL status and he was subsequently dropped from the rolls of the Army on 1 April 1975.  He was apprehended by civil authorities in Freeport, TX on 18 July 1975 and he was returned to military control.  He was placed in pre-trial confinement from 25 July to 8 August 1975.

8.  The facts and circumstances concerning the applicant’s separation processing are not available for review with this case.  However, his records contain the following documents:

	a.  Unit Orders Number 143, issued by the USAPCF, Fort Hood, TX, dated 
17 September 1975, reducing the applicant to private/E-1, effective 
15 September 1975.  The reason for this action was the applicant had been approved for separation with an undesirable discharge. 


	b.  A copy of Special Orders Number 190, issued by Headquarters, III Corps and Fort Hood, Fort Hood, dated 23 September 1975, ordering that the applicant be discharged from the Army effective 30 September 1975 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

	c.  A copy of a memorandum, dated 30 September 1975, listing the reason for his separation as conduct triable by court-martial and the authority as chapter 10, Army Regulation 635-200.

	d.  A properly-constituted DD Form 214 that shows he was discharged on 
30 September 1975 under the provisions of chapter 10 of Army Regulation
635-200, for the good of the service - in lieu of court-martial with an undesirable discharge.  This form also shows he completed 10 months and 21 days of creditable active service and he had 144 days of lost time.

9.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-years statute of limitation.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an under other than honorable conditions discharge is normally considered appropriate an undesirable discharge was appropriate at the time the applicant was separated.

11.  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.

12.  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.  The applicant contends that his under other than honorable conditions discharge should be upgraded.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 30 September 1975 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a court-martial with an under other than honorable conditions discharge.

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service.

4.  The applicant was nearly 19 years of age when he enlisted in the Army and over 19 years of age when he went AWOL.  There is no indication that shows he was any less mature than other Soldiers of the same age who honorably completed their term of service.  Additionally, despite the lack of evidence that shows he went AWOL due to the illness of his father, there were many other legitimate ways he could have addressed this situation if he had chosen to do so.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Therefore, there is insufficient evidence to grant the applicant the 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)                                         AR20100007468



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ABCMR Record of Proceedings (cont)                                         AR20100007468



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