BOARD DATE:	  28 September 2010

		DOCKET NUMBER:  AR20100008878 


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, in effect, an upgrade of his undesirable discharge to a general discharge. 

2.  The applicant states, in effect, he desires that his personal circumstances be considered in the upgrade of his discharge to include the fact that he has been a solid citizen since he was separated. 

3.  The applicant provides a self-authored statement, five letters of support, an Orange County (TX) Sheriff's Office report showing he has no arrest record, and a copy of his Official Military Personnel File.

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 17 August 1971.  After completing initial entry training, he was awarded military occupational specialty 45K (Tank Turret Repairman) and assigned to the U.S. Army Europe (USAREUR).

3.  Letter Orders Number 8-645, Headquarters, USAREUR and Seventh Army, dated 30 August 1972, ordered urgent emergency leave for the applicant by reason of his wife being in police custody.  He was authorized to visit the continental United States (CONUS), specifically an address in Huntington Beach, CA.  

4.  A DA Form 20 (Enlisted Qualification Record) shows in item 38 (Record of Assignments) his duty status changed to an AWOL status on or about 
12 January 1973 and he was dropped from Army rolls on 10 February 1973.  On 13 August 1973, he was assigned to the Personnel Confinement Facility (PCF) at Fort Ord, CA.  

5.  The complete facts and circumstances of the applicant's discharge are not contained in the available records.  However, his records contain a properly constituted DD Form 214 for the period ending 12 October 1973.  This DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  

6.  The applicant's DD Form 214 further shows he was issued an Undesirable Discharge Certificate and that he completed 1 year, 6 months, and 22 days of total active service, with 213 days of lost time.

7.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

8.  The applicant's statement shows the following:

	a.  When he arrived home on emergency leave, his wife had just been released from jail and his son was in the hospital because he had pulled a motorcycle over on himself.  He stayed with his mother-in-law while trying to figure out how to deal with his family problems.  He had no help from his parents, and his wife had decided she would have nothing to do with him or their son.  

	b.  While on emergency leave, he was temporarily transferred to Fort MacArthur, CA, to serve as an honor guard.  He and the rest of his detail received a letter of commendation for their performance at one funeral service.  


During this time, he spoke to a chaplain with whom he developed a plan that seemed to help him out, but he was going to be sent back to Germany before he could "follow up on things."  He became depressed and he could not deal with the idea of going back to Germany while his life at home was in such a mess. 

	c.  He was told to report to Fort MacArthur for orders and an airline ticket back to Germany, which he did.  It was at that time that thoughts of his son's welfare led him to believe that going AWOL was his last option, so he did.

	d.  While he was AWOL, he was pulled over by a police officer and subsequently sent to the stockade at Fort Ord.  A court-appointed attorney tried to talk him into trial by court-martial and pursuing reassignment to Fort MacArthur to continue his duties in the honor guard.  In the situation he was in, he could not understand why he should have a court-martial when he could end his time in the Army and go home.  His attorney advised him to wait and go through the procedure, but he couldn't.

	e.  He signed a form stating he was aware of the circumstances [of his discharge], which he found out later was one of the stupidest things he had ever done.  He is now asking for an upgrade of his discharge to general under honorable conditions so he can receive Department of Veterans Affairs (VA) benefits.  

9.  The letters of support provided by the applicant commend him as a church member and citizen.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  At the time, an Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the service.

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.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record shows he was AWOL from 12 January to 12 August 1973, an offense punishable under the UCMJ with a punitive discharge.  Separations under the provisions of chapter 10 of Army Regulation 635-200 are voluntary separations.  Although the applicant's separation processing paperwork is not available for review with this case, he confirms in his statement that, against the advice of his attorney, he voluntarily requested discharge from the Army in lieu of trial by court-martial.

2.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for VA benefits.

3.  In the absence of evidence showing the record is in error or unjust, the applicant is not entitled to 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)                                         AR20100008878



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)