IN THE CASE OF:	  

		BOARD DATE:	 26 August 2010

		DOCKET NUMBER:  AR20100008792 


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 the following:

* His commanding officer (CO) would not give him emergency leave and he believes his CO made the wrong decision
* His father was missing and he had no choice but to look for him
* He had to help his mother and younger siblings when his father was missing
* He knows he made a desperate choice
* He believes he has paid his debt by living with the shame
* He had an uneasy life growing up 
* He had to go work at a very young age to help support his family

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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.  The applicant enlisted in the Regular Army on 13 November 1974 for a period of three years.  

3.  On 12 March 1975 and 6 June 1975, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from 10 February 1975 to 17 February 1975 and 20 May 1975 to 4 June 1975.

4.  The applicant’s discharge packet is not available.  His service record contains an Army Discharge Review Board (ADRB), Case Report and Directive which shows the following:

* Charges were preferred against the applicant for being AWOL from 20 June 1975 to 14 January 1976
* 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
* The company commander recommended approval with an undesirable discharge and the intermediate commander concurred
* The approval authority approved his request for discharge with an undesirable discharge
* The applicant was discharged on 10 March 1976

5.  His DD Form 214 shows he completed 7 months and 24 days of active military service with 244 days of lost time.  

6.  On 2 February 1982, the ADRB denied the applicant’s request for an upgrade of his discharge.  

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions in regard to the reasons he was AWOL and his CO not giving him emergency leave 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.  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.

3.  The applicant’s service record shows he received two Article 15s and 
244 days of lost time.  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.  

4.  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 request for an upgrade of his discharge.

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)                                         AR20100008792





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ABCMR Record of Proceedings (cont)                                         AR20100008792



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