IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100010409 


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 an upgrade of his undesirable discharge (UD) to a general discharge.

2.  He states he believes the record to be unjust as the average individual who had been absent without leave (AWOL) generally only lost a pay grade, paid a fine, and/or was assigned extra duty.  He understood he was originally classified as deserting, yet that was later changed once he returned to duty by his own actions.  At that time, he was stripped of his pay grade from E-4 to E-1 and then discharged under other than honorable conditions for being AWOL for only 106 days.

3.  He provides copies of the following documents:

* his DA Form 2-1 (Personnel Qualification Record - Part II)
* a DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* his DD Form 214 (Report of Separation from Active Duty)

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 records show he enlisted in the Regular Army in pay grade E-1 on 29 September 1972 for 4 years.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was promoted to pay grade E-4 on 28 January 1974.  He served in Alaska from 11 July 1974 through 10 October 1976.

3.  On 4 June 1973, he was punished under Article 15, UCMJ, for being AWOL from 18 May 1973 to 30 May 1973.  His punishment regarding reduction to pay grade E-1 and forfeiture of $80.00 pay for 2 months was suspended until 3 August 1973.

4.  He was reported AWOL on 29 July 1974 and dropped from the rolls as a deserter on 28 August 1974.  He was apprehended by military authorities and returned to military control on 12 November 1974.

5.  On 15 November 1974, a DD Form 458 (Charge Sheet) was prepared by the Commander, U.S. Army Personnel Control Facility, U.S. Army Garrison, Fort Lewis, Washington.  He was charged with one specification of being AWOL from 29 July 1974 through 12 November 1974.

6.  On 21 November 1974, after consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged under other than honorable conditions and furnished a UD Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Veterans Administration. 
He waived his rights and elected to submit a statement in his own behalf.

7.  He stated, in effect, that his brother talked him into going into the Army.  Once he got in, he didn't like what his brother had done to him and there was no way for him to get out.  He didn't have a very good childhood and his family was poor. 
He got married at the age of 16 because he had gotten a girl pregnant.  He was too young to get a job, so they went on welfare.  Then he went into the Army and his wife starting getting tired of him having to go to the field a lot.  They started fighting and arguing about every little thing that went on.  He started using drugs and drinking and neglecting his duties.  After reporting to his assignment in Alaska, his wife told him she was not going there.  So, he left Alaska to find out why and what was going on.  He found out his wife was involved with a motorcycle gang, had lost all respect for him, and wanted a divorce.  He just wanted to get out of the Army to take care of his problems.  He felt it would be better for the Army and himself.  That's why he requested discharge under the provisions of chapter 10.

8.  On 3 December 1974, the Personnel Control Facility commander recommended approval of the applicant's request and recommended the issuance of a UD Certificate.  The commander stated the applicant's record of AWOL qualified him for discharge under the provisions of chapter 10, Army Regulation 635-200.  Additionally, he had counseled the applicant and found him to be completely unmotivated and incorrigible.  The applicant stated he wanted a discharge so he can go to the penitentiary without the Army on his neck after he takes care of a motorcycle gang.  The applicant was definite about committing violence to get his wife back.  The battalion commander felt the Army should not be a part of the applicant's life when he gets his revenge.

9.  On 11 December 1974, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that a UD Certificate be issued and that the applicant be reduced to pay grade E-1.

10.  The applicant was discharged in pay grade E-1 on 13 December 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial and issued a UD.  His service was characterized as under other than honorable conditions.  He was credited with 1 year, 10 months, and 17 days of net active service with 118 days of lost time.

11.  There is no evidence he requested assistance through his chain of command for any problems he was having during his period of service.  His records are absent any evidence of awards for meritorious achievement or performance during his period of service.

12.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

13.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 provided that a member who had 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 in lieu of trial by court-martial at any time after the charges have been preferred.  A UD was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

14.  Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, also provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted; however, on 4 June 1973 he accepted punishment under Article 15 for AWOL.  His punishment of reduction to pay grade E-1 and forfeiture of pay was suspended.  There is no evidence that the suspension was vacated.  On 29 July 1974, he again departed AWOL.  Upon his return to military control, he was charged with one specification of being AWOL for 106 days and he voluntarily requested discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  He also acknowledged that he could be discharged under other than honorable conditions and furnished a UD Certificate.

2.  The applicant submitted no evidence to mitigate his offense or to show that he was denied any assistance for his problems from his chain of command.  He also provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

3.  Without evidence, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

4.  In view of the foregoing, 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)                                         AR20100010409



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ABCMR Record of Proceedings (cont)                                         AR20100010409



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