BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100015837 


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 upgrade of his undesirable discharge.

2.  The applicant states he had a young wife and needed to be discharged to keep his marriage together.  He is still with the same wife.  He also states he was told that after 1 year he could get his discharge upgraded to a general discharge (GD).

3.  The applicant provides no documentation in support of his request.

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 enlisted in the Regular Army (RA) on 15 December 1967 and reenlisted on 16 April 1969.  He served in military occupational specialties 12A (Pioneer) and 12B (Combat Engineer) at duty stations in the continental United States and in Germany.

3.  A DA Form 20 (Enlisted Qualification Record) shows in item 44 (Time Lost) he was absent without leave (AWOL) during the following periods:

* 11 August 1969 through 29 March 1970
* 23 April 1970 through 4 January 1971
* 8 through 16 April 1972
* 17 April 1972 through 10 February 1974
* 4 March 1974

4.  A DD Form 458 (Charge Sheet) shows, on 8 March 1974, he was charged with two specifications of violation of the Uniform Code of Military Justice (UCMJ), Article 86 (AWOL), for absenting himself without authority from his unit without authority from on or about 29 March 1972 until on or about 11 February 1974 and from on or about 4 March to on or about 5 March 1974.

5.  On or about 9 April 1974 and on 23 May 1974, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  Both requests were disapproved by the separation authority.

6.  On 14 June 1974, the applicant again voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  Prior to submitting his request, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions (UOTHC) discharge, the procedures and rights that were available to him, and of the substantial prejudice he might encounter in civilian life because of an undesirable discharge.

7.  In his voluntary request for discharge, the applicant indicated he understood that by requesting discharge he was admitting guilt to the charge against him or of lesser included offenses and the imposition of a bad conduct or dishonorable discharge was authorized.  He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  In a statement he provided in support of his request for discharge, the applicant stated, in effect, he initially went AWOL because he was told he could not take his wife with him to Germany.  His wife had not been receiving allotments from his pay, so he remained AWOL for 22 months to work and support his family.  He turned himself in at Fort Lewis, WA "in hopes of getting a discharge and getting the service behind [him]."

9.  On 11 July 1974, the separation authority approved the applicant's request for discharge and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate).  On 12 July 1974, he was discharged accordingly and his service was characterized as UOTHC.  He completed 3 years, 4 months, and 21 days of total active military service with 1,163 days of lost time.

10.  On 9 December 1985, the Military Review Boards Agency informed the applicant that the Army Discharge Review Board had denied his request for upgrade of his discharge.

11.  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.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge (HD) 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.

13.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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 HD.  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 evidence of record does not support the applicant's request for upgrade of his undesirable discharge.

2.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record of service shows over 1,100 days of time lost due to being AWOL.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either an HD or a GD.

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)                                         AR20100015837





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100015837



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1