IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100013651 


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, that his undesirable discharge be upgraded.

2.  He states he was 17 years of age at the time he entered the military.  After not receiving pay for 2 months, he made a bad decision by going absent without leave (AWOL) to try to get out of the Army.  He states he was offered an undesirable discharge for the good of the service.  He was told his discharge was not considered dishonorable or he would not have accepted it.  However, his DD Form 214 (Armed Forces of the United Report of Transfer or Discharge) shows he received a discharge under other than honorable conditions.

3.  He provides no additional documentation in support of this case.

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 25 May 1954.  He enlisted in the Regular Army on 29 July 1971 at 17 years of age and successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty 67Y (Cobra Repairman).  The highest rank the applicant held was specialist four/E-4.

3.  On 5 October 1972, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL for the period 4 September 1972 through 3 October 1972.

4.  A DD Form 458 (Charge Sheet), dated 7 February 1974, shows charges were preferred against the applicant for being AWOL during the periods 7 October 1972 through 30 October 1972 and 2 November 1972 through 13 February 1973.

5.  On 26 February 1973 after consulting with counsel, he 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 trial by court-martial.

6.  He indicated in his request that he understood he could be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf; however, the statement is not available in his records.

7.  On 28 February 1973, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.  On 28 April 1973, he was discharged accordingly.  He completed a total of 1 year, 8 months, and 18 days of total active service with 162 days of time lost due to AWOL.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges 

have been preferred and must include the individual's admission of guilt.  At the time an undesirable discharge, characterized as under than honorable conditions, was normally considered appropriate.

9.  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.

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 he was young and went AWOL because he was not being paid at the time of his misconduct.  However, records show the applicant was 18 years, 4 months, and 11 days of age at the time of his first offense.  He successfully completed basic combat training and advanced individual training and knew the Army's standards of conduct.  Therefore, his contention that he was immature at the time of his offenses does not mitigate his indiscipline.

2.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.

3.  The applicant's records show he received one Article 15 and had three instances of 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 an honorable or 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)                                         AR20100013651



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ABCMR Record of Proceedings (cont)                                         AR20100013651



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