IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100010069 


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.

2.  The applicant states:

* While on leave he came home to find his girlfriend (mother of his two young children) cheating on him
* His children were being neglected and left unsupervised
* He decided to extend his leave (without approval) to get his children into his parents' custody
* Once his children were situated with his parents he returned to military control
* At the age of 19 his reasons seemed to be logical
* He did not realize the effect his actions would have on him  

3.  The applicant provides no documentary 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 was born on 5 June 1952.  He was inducted into the Army of the United States on 1 August 1972.  He successfully completed basic combat training and on the job training in military occupational specialty 45A (armament maintenance apprentice).   

3.  On 6 December 1972, nonjudicial punishment (NJP) was imposed against the applicant for violating a lawful general regulation (possession of marijuana).  His punishment consisted of a forfeiture of pay.
 
4.  On 28 February 1973, NJP was imposed against the applicant for being absent without leave (AWOL) from 6 January 1973 to 19 February 1973.  His punishment consisted of a reduction to E-1 and a forfeiture of pay.

5.  On 11 July 1973, NJP was imposed against the applicant for being AWOL for 4 and 1/2 hours and failure to repair.  His punishment consisted of a reduction to E-1 (suspended), a forfeiture of pay, and extra duty.

6.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 14 May 1974 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial, with an undesirable discharge.  He had served a total of
1 year, 2 months, and 6 days of creditable active service with 218 days of lost time (6 January 1973 to 18 February 1973 and 18 September 1973 to 10 March 1974).   

7.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

8.  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.  

9.  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 he was 19 years old when he went AWOL due to family problems.  However, age is not a sufficiently mitigating factor.  The applicant was 20 years old when he was inducted and he successfully completed his training.

2.  There is no evidence the applicant sought assistance from his chain of command or chaplain in a way to resolve his problems within established Army procedures prior to going AWOL.

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request.

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)                                         AR20100010069



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ABCMR Record of Proceedings (cont)                                         AR20100010069



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