DOCKET NUMBER:  AR20100008239 


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 the following:

* He has led a very good life since he has been out of the Army
* He was transferred to another unit and had difficulties with the new sergeant in charge who always gave him Article 15s
* He did not have the issues with his prior duty assignment at Fort Eustis, VA
* His problems started at Fort Meade with the men in control
* His service records should reflect all he has stated

3.  The applicant provides the following documents in support of his application:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* Self-authored statement
* Police background check
* Criminal Record and Incident Report, Consent to Release Information
* Arrest record
* Several character references 



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 26 November 1969 for a period of two years.  He completed basic combat training at Fort Bragg, NC and advanced individual training at Fort Eustis, VA.  

3.  Between June 1970 and November 1970, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on three separate occasions for the following offenses:

* Failing to go to appointed place of duty
* Absent without leave (AWOL) from 6 July 1970 to 11 July 1970
* AWOL from 5 August 1970 to 26 September 1970

4.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) on his DA Form 20 (Enlisted Qualification Record) shows he was AWOL from 3 January 1971 to 6 January 1971.  This period of lost time is recorded on his DD Form 214.  His service record does not contain nonjudicial punishment for this period of AWOL.  

5.  His DA Form 20 shows he was reassigned to Fort Meade, MD in January 1971.  

6.  Charges were preferred against the applicant on 1 December 1971 for being AWOL from 8 February 1971 to 16 February 1971 and from 19 February 1971 to 29 November 1971.  

7.  On 10 January 1972, 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 Veterans Administration (VA) if an undesirable discharge was issued.  He did not submit statements in his own behalf.

8.  On 4 February 1972, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 with issuance of an Undesirable Discharge Certificate.

9.  The applicant was discharged from active duty on 24 February 1972 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, 4 months, and 29 days of active military service with 300 days of lost time.  

10.  The applicant provided a self-authored statement in support of his claim in which he stated the following:

* He would like his DD Form 214 changed from under other than honorable conditions to a general discharge because he has learned from his mistakes
* He enlisted in the military on the buddy system and was immediately split from his buddy
* He had several problems with his first sergeant who would "send him on" Article 15s
* He has turned his life around and has not had any turmoil in his life except when he was divorcing his wife
* He has exceptional character references to prove his personality and dedication to leading his family and friends in the right directions through life
* He would have served his country for his entire detail and retired from the military if he was given the proper chance

11.  The applicant also provided several character references in which he was given many accolades for his hard work, dedication to family, friends, and community.  

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

13.  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.

14.  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 in regard to his post-service conduct are noted.  However, these issues are not sufficiently mitigating to warrant relief in this case.

2.  The applicant’s contentions in regard to his difficulties with the first sergeant are also noted.  However, the evidence of record does not substantiate his claims.  His misconduct started well before he was assigned to Ft. Meade.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.

4.  The applicant’s service record shows he received three Article 15s and 
300 days of lost time due to AWOL.  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.  

5.  The applicant has provided no evidence other than his self-authored statement that the circumstances regarding his problems with the men in control were the reasons he committed the offenses which led to his discharge.  Even if so, he had the responsibility to resolve his personal problems through other means to include seeking help from his chain of command.  Therefore, he has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in his case were in error or unjust.

6.  The applicant's character references were noted.  However, they are not sufficiently mitigating to grant relief in this case.




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)                                         AR20100008239





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)