IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100012987 


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 reconsideration of an earlier appeal to upgrade his undesirable discharge.

2.  The applicant states he is submitting a New York State Certificate of Death that shows his father passed away in 1971.  He states, at the time, his father was age 75 and in poor health.  In the best interest of his mother he felt it necessary to take care of her in her time of need.  The applicant continues he was only thinking of his family back home, not understanding the repercussions of how an undesirable discharge would affect him for the rest of his life.

4.  The applicant provides a New York State Certificate of Death, dated 14 June 1971.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090010730, on 29 October 2009.

2.  The New York State Certificate of Death provided is new evidence, which warrants consideration by the Board.

3.  The applicant was inducted into the Army of the United States on 13 April 1970.  He successfully completed basic combat and advanced individual training and he was awarded military occupational specialty 63B (Wheel Vehicle Mechanic).

4.  A DD Form 458 (Charge Sheet), dated 17 January 1972, shows court-martial charges were preferred against the applicant for being absent without leave (AWOL) for the periods 18 June 1970 through 8 April 1971 and 23 May 
1971 through 17 January 1972.

5.  On 25 January 1972, after consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.

6.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to provide statements in his own behalf.

7.  On 6 March 1972, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of an Undesirable Discharge Certificate.  On 15 April 1972, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year, 2 months, and 13 days of total active service with 533 days of time lost due to AWOL.

8.  On 9 June 2009, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade his discharge.  On 26 November 1986, the ADRB reviewed the applicant's petition.  The ADRB determined the applicant's discharge was both proper and equitable and unanimously voted to deny his petition.  

9.  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.

10.  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 that his father's death caused him to go AWOL to care for his mother.  It is unfortunate the applicant's father passed away.  However, there is no evidence in the available record and the applicant has provided no evidence that shows he sought assistance from his chain of command, chaplain, or community support service to assist him with his problems prior to his AWOL.  In addition, he could have made a statement with his discharge request; however, he failed to take the opportunity to do so.  Therefore, there is no basis for this argument.

2.  Evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.

3.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulations and without procedural errors that would jeopardize his rights.  Therefore, the characterization of the applicant’s discharge was both proper and equitable.

4.  The applicant's records show that he had two instances of lengthy unauthorized absences.  He had completed 1 year, 2 months, and 13 days of service before his separation with a total of 533 days of time lost due to being AWOL.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090010730, dated 29 October 2009.



      _______ 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)                                         AR20100012987



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100012987



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1