BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100014620 


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 to an honorable discharge.

2.  He states he was discharged for being absent without leave (AWOL).  At the time, he was very young and immature.  He also states his girlfriend was pregnant and he felt he had to go home to support her and the child financially.  Since then he has shown good character within his community.  If he could do it over again, he would realize that staying in the Army was the best thing for his girlfriend, his child, and himself.  At the time, he was too young to realize that and also too scared not to do the right thing and be with his girlfriend and the baby.  

3.  He provides:

* Enlistment Contract - Armed Forces of the United States
* Two DA Forms 20 (Enlisted Qualification Record)
* DA Form 188 (Extract Copy of Morning Report)
* Probable Cause of AWOL letter
* AWOL notification letter to his mother
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* State of North Carolina Criminal Record Search
* Three character reference letters
* Letter from the National Personnel Records Center


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.  On 31 August 1970, the applicant enlisted in the Regular Army (RA) in pay grade E-1 for 3 years.  On the date of enlistment, he was 17 years and 3 months of age.  He was promoted to pay grade E-4 on 6 July 1971.

3.  He was reported AWOL on 7 September 1971 and dropped from the rolls of his unit on 7 October 1971.  He was apprehended and returned to military control on 29 January 1972.

4.  On 2 February 1972, after consulting with counsel, he voluntarily requested 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.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge 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.

5.  On 3 February 1972, a DD Form 458 was prepared by the Commander, U.S. Army Personnel Control Facility, Headquarters Command, Fort Jackson, SC.  He was charged with one specification of being AWOL from 7 September 1971 through 29 January 1972.

6.  On 4 February 1972, the Commander, U.S. Army Personnel Control Facility, Headquarters Command, Fort Jackson, recommended approval of the applicant's request and the issuance of an undesirable discharge.  

7.  On 7 February 1972, the Commander, U.S. Army Training Center, Fort Jackson, recommended approval of the applicant's request and the issuance of an undesirable discharge.  The commander stated after careful consideration of available data, including the fact the applicant was young, had a negative attitude, and had a current AWOL offense for a total of 144 days, after which he was apprehended, it appeared approval of his request would be in the best interests of the Government and the applicant.

8.  On 9 February 1972, 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.

9.  He was discharged accordingly in pay grade E-1 on 14 February 1972.  He was credited with 1 year and 21 days of net active service and lost time from 7 September 1971 through 28 January 1972.

10.  He provided a Probable Cause for AWOL letter, dated 24 February 1972, wherein his unit commander stated the applicant was not trying to avoid hazardous duty or shirk important service.  His section chief did not indicate that he may have had any particular difficulties while in that unit.  It was unknown at the time what reason if any the applicant may have had for leaving the unit.  He also provided a letter, dated 24 February 1972, wherein his mother was notified of his AWOL status.

11.  There is no evidence the applicant requested assistance through his chain of command for any personal problems which prevented him from completing 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.  He also provided a State of North Carolina Criminal Record Search and 3 character reference letters.  The character reference letters attest to his high degree of integrity, responsibility, ambition, and desire to help others.  Two individuals recommended him as a worthy candidate for any assistance the Board can provide him.  

14.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of the regulation stated a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  An undesirable discharge was normally considered appropriate. The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

15.  Army Regulation 635-200, paragraph 3-7a, stated 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.

16.  Army Regulation 635-200, paragraph 3-7b, stated 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 considered.  The evidence shows he was 17 years and 3 months of age when he enlisted in the RA and 18 years and 3 months when he went AWOL.  There is no evidence he was any less mature than other Soldiers of the same age who served successfully and completed their term of service.  Therefore, his contention is not sufficient to support a change of his undesirable discharge. 

2.  His unit commander stated, pertaining to his AWOL, the applicant's section chief did not indicate that the applicant may have had any particular difficulties while in that unit and it was unknown at the time what reason if any the applicant may have had for leaving the unit.  The Commander, U.S. Army Training Center, Fort Jackson, stated after careful consideration of the applicant's youth, negative attitude, and current 144 day AWOL offense and apprehension, it appeared approval of his request would be in the best interests of the Government and the applicant.  The convening authority approved his request and directed issuance of an undesirable discharge and he was discharged accordingly.

3.  He has provided no evidence or a convincing argument to show his undesirable 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 an honorable or a general discharge.


4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.

5.  In view of the foregoing, there is no basis for granting the 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 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)                                         AR20100014620





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ABCMR Record of Proceedings (cont)                                         AR20100014620



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