IN THE CASE OF:	  

		BOARD DATE:	 12 August 2010 

		DOCKET NUMBER:  AR20100008152 


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 under honorable conditions discharge.  

2.  The applicant states he was 18 years old and his mother was near death due to a heart attack.  He used poor judgment and went into an absent without leave status while trying to get home to be with her.  Up until this point he had served honorably and he has been a hard-working civilian without any major legal problems since being discharged.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a Department of Veterans Affairs (VA) Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative) in support of his application.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

The Disabled American Veterans (DAV), as counsel for the applicant, states the following:

* Race played a factor in the military in 1975
* The applicant’s mother was sick and could not take care of herself or provide for herself
* The applicant’s conduct during his subsequent discharge was exemplary
* The applicant is now a changed man and is a productive member of his community
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 enlisted in the Regular Army on 21 December 1973 at 17 years of age.  

3.  On 27 September 1974, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being AWOL from 23 September to 26 September 1974.  

4.  Charges were preferred against the applicant on 19 March 1975 for four specifications of being AWOL during the following periods:

* 30 October to 11 November 1974
* 13 November to 19 November 1974
* 25 November to 9 December 1974
* 20 December 1974 to 9 March 1975

5.  On an unknown date, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life.  He also acknowledged that he might be ineligible for many or all Army benefits administered by the VA if an undesirable discharge was issued.  He submitted statements in his own behalf.  The applicant stated he went AWOL because his mother had a bad heart and there was no one at home to take care of her.  He tried to get a chapter 
13 discharge at Fort Ben Harrison, Indiana.  The chaplain told him to go home and the discharge packet would be mailed to him.  


6.  The separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 with the issuance of an Undesirable Discharge Certificate.

7.  The applicant was discharged on 9 April 1975 under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an undesirable discharge.  He had completed 1 year and 26 days of active military service with 114 days of lost time due to being AWOL.  

8.  The applicant’s service record does not show he applied to the Army Discharge Review Board within its 15-year statute of limitations.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that 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 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.

10.  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’s contentions regarding his age and his mother’s heart condition are acknowledged.  However, the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct (AWOL) which led to his discharge.  While the Board is empathetic, the applicant's personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.

2.  Although counsel contends race played a factor in the military in 1975, there is no indication the applicant suffered racial discrimination.  



3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of court-martial was administratively correct and in conformance with applicable regulations.  There is no evidence that the applicant's request was made under coercion or duress.

4.  The available evidence shows the applicant received one Article 15 for being AWOL and he was charged with three additional specifications of being AWOL for a total of 114 days.  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 for a general discharge under honorable conditions.

5.  The evidence of record does not indicate the actions taken in his case were in error or unjust, therefore, there is no basis for granting the applicant's 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)                                         AR20100008152



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ABCMR Record of Proceedings (cont)                                         AR20100008152



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