BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100009323 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states he would like his discharge upgraded so he can receive some benefits.  He couldn't adjust to military life, his wife had a nervous breakdown, and he had two small children at home to raise.  He feels after 
36 years he could at least have his discharge upgraded to a general discharge.

3.  The applicant provides no additional evidence 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's military personnel records show he was inducted into the Army of the United States on 9 July 1970.  He completed basic combat training; however, he did not complete advanced individual training.

3.  The applicant departed absent without leave (AWOL) on 30 November 1970 and he was apprehended by civilian authorities on 5 June 1974.

4.  On 13 June 1974, court-martial charges were preferred against the applicant for being AWOL from on or about 30 November 1970 to on or about 5 June 1974.

5.  On 17 June 1974, the applicant consulted with counsel and voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* guilty of the offense with which he was charged
* making the request of his own free will
* advised he may be furnished an Undesirable Discharge Certificate

6.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

7.  The applicant submitted a statement with his request for discharge.  He stated his wife had two nervous breakdowns after her father killed her mother and then himself.  He had two small children at home and they were expecting another one.  His mother was caring for his disabled father and his brothers and sisters had families of their own.  He had financial problems at home and he was going to lose everything if he didn't get home where he had a job waiting for him.  He stated he should have never been brought into the service because of his responsibilities at home.  He stated if his discharge was denied it would hurt both him and his family and that he would probably go AWOL again.

8.  On 21 June 1974, the appropriate authority approved the applicant's request for discharge for the good of the service and directed issuance of an Undesirable Discharge Certificate.

9.  On 2 July 1974, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial, with an undesirable discharge.  He had completed 5 months and 19 days of service that was characterized as under other than honorable conditions.  He had 587 days of lost time prior to his expiration of term of service (ETS) and 696 days lost subsequent to his ETS.

10.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade his discharge.  On 14 March 1979, the ADRB reviewed and denied the applicant's request for upgrade.

11.  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 Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

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 his discharge should be upgraded to a general discharge so he can receive some benefits.  He contends he was having problems at home and after 36 years he feels his discharge should be upgraded.

2.  The applicant acknowledged in his request for discharge that he may be ineligible for many or all veteran benefits under both Federal and State laws.
The ABCMR does not upgrade a properly issued discharge to make an individual eligible for benefits from another agency.  In addition, the ABCMR does not upgrade a properly issued discharge based on the passage of time.

3.  The applicant has submitted no substantive evidence showing his problems at home were the cause of his going AWOL.  There also is no evidence showing he sought counseling or assistance from his chain of command prior to going AWOL.

4.  The applicant voluntarily requested discharge, admitted guilt to the AWOL offense for which he was charged, and acknowledged he understood he could receive an undesirable discharge.  His request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.

5.  The type of discharge and the reason for separation were appropriate considering all the facts of the case.  The available evidence contains no indication of procedural or other errors that would have jeopardized his rights.

6.  The applicant had been in the Army for only 5 months when he went AWOL.  The fact that he was AWOL for 1,283 days (which equates to 3 years, 6 months, and 7 days) and he was apprehended by civilian authorities clearly shows his lack of intention to return to his unit on his own.  This conduct is clearly unsatisfactory.

7.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to a general 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)                                         AR20100009323



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)