IN THE CASE OF:	  

		BOARD DATE:	  18 November 2010

		DOCKET NUMBER:  AR20100014771


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 that his under other than honorable conditions discharge be upgraded.

2.  The applicant states, in effect, that he was on leave from Germany when he lost his return plane ticket.  The applicant states that he tried his best to find a way back to his unit, but his commander still considered him to have been absent without leave (AWOL), and referred him to a court-martial.  The applicant states that he initially refused to request a discharge, but did so after suffering extreme illness and injury, just so he could get home.  Finally, the applicant states that he was young and gullible at the time, and would like his discharge upgraded so that he'll be eligible to obtain service-connected benefits from the Department of Veterans Affairs (VA).  

3.  The applicant provided a personal statement and a third-party statement.

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.  Records show the applicant enlisted in the delayed entry program of the United States Army Reserve (USAR) on 10 July 1972 and the Regular Army on 27 July 1972.  Records show he completed basic combat training and advanced individual training and was awarded military occupational specialty 63B (Wheeled Vehicle Repairman).  The highest rank/grade he attained while serving on active duty was private/E2.

3.  On 21 November 1972, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from 14 November 1972 to 21 November 1972.  

4.  On 20 March 1973, the applicant received NJP under the provisions of Article 15, UCMJ, for two counts of failing to obey a lawful order on 12 March 1973.    

5.  On 7 May 1973, the applicant received NJP under the provisions of Article 15, UCMJ, for being drunk and disorderly, for failing to obey a lawful order, and for 2 counts of wrongfully communicating a threat to a superior noncommissioned officer and commissioned officer on 24 March 1973.  
  
6.  On 18 September 1973, the applicant was reported AWOL from his unit and remained AWOL until 11 October 1973.  

7.  On 2 November 1973, the applicant was convicted by a special court-martial for one count of AWOL and two counts of assault.  The applicant was sentenced to 110 days confinement with hard labor, reduction to the rank to private/E1, and a forfeiture of pay.  

8.  On 28 January 1974, the applicant was reported AWOL from the 4th Adjutant General Replacement Detachment, 4th Infantry Division (Mechanized), Fort Carson, CO.  The applicant was returned to military control on 12 June 1974.  

9.  The applicant's discharge packet is not available for review.  However, his DD Form 214 (Report of Separation from Active Duty) shows he was administratively discharged on 23 July 1974, under the provisions of Army Regulation 600-200, Chapter 10, and issued an under other than honorable conditions discharge.  The applicant completed 1 year, 3 months, and 11 days of creditable active service and had 256 days of lost time due to being AWOL and in confinement.

10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

11.  The applicant's personal statement states:

* the return-trip airplane tickets were misplaced by his grandparents
* he tried numerous means to get back to Germany, including the Red Cross
* he was court-martialed upon his return and sent to the stockade
* he was given the opportunity to request discharge at that time, but refused
* while in confinement at Fort Riley, KS he contracted pneumonia
* he suffered a severe arm laceration while buffing floors, which required additional medical care after his separation date
* he should have received an honorable or medical discharge

12.  The applicant's third-party statement states that the applicant's neighbor, now deceased, personally knew and once employed the applicant at his service station.  The third-party also states that in or about June 1973, the neighbor tried to help the applicant, who was AWOL at the time, by taking him to the local Naval Reserve Unit and turning him over to their custody.  
  
13.  There is no evidence in the available records, or any evidence provided by the applicant, that indicates the applicant lost his return airline ticket, or that document his attempts to resolve the matter.  Additionally, there is no evidence in the available records, or any evidence provided by the applicant, that supports his entitlement to separation for medical reasons.  

14.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

15.  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.

16.  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's request for discharge upgrade has been carefully considered; however, there is insufficient evidence to support this request.

2.  The applicant's record indicates he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.

3.  In the absence of evidence to the contrary, it is presumed that the applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The characterization of service is commensurate with the applicant’s overall record of military service.

4.  The applicant's contention that he should have been separated for medical reasons is noted.  However, there is no evidence in the available records, or any evidence provided by the applicant, that supports his entitlement to separation for medical reasons.  

5.  Based on his record of indiscipline, including 256 days of time lost due to being AWOL and in confinement, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to either a general or honorable discharge.

6.  The ABCMR does not grant requests for an upgrade of discharges solely for the purpose of making the applicant eligible for veterans' or medical benefits.


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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20100014771



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