IN THE CASE OF:	  

		BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100016497 


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 undesirable discharge be upgraded to honorable.

2.  The applicant states, in effect, he does not believe he was given proper consideration for the circumstances involved in his decision to leave the Army.  When he was drafted into the Army he had every intention of fulfilling his obligation.  He further states that his letter to the installation commander in February 1971 explained how he believed his brother's death was his fault because his brother died in an automobile accident while his family was driving to see him at the military base.  The applicant says his mental and emotional state was affected such that he could no longer fulfill his duties.  His family was in turmoil and needed him at home.  Had his brother's death not occurred he would have proudly served his country.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a letter he wrote to the Commanding General, Fort Belvoir, Virginia, dated 2 February 1971.

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's records show:

	a.  he was inducted into the Army of the U.S. on 4 April 1968;

	b.  he was convicted by special court-martial for being absent without leave (AWOL) from 24 May to 6 November 1968;

	c.  he was in confinement from 7 November 1968 to 4 February 1969; and

	d.  he was AWOL 10 February 1969 to 17 December 1970.

3.  On 15 January 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.

4.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive an Undesirable Discharge Certificate which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an Undesirable Discharge Certificate.

5.  In his request for discharge, the applicant indicated that he understood that if his discharge request was 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.


6.  In a letter to the Commanding General, Fort Belvoir, Virginia, dated 
2 February 1971, the applicant informed the commander about the automobile accident that resulted in the death of his brother and serious injury to his mother and father.  He explained that the accident had occurred during a trip they were making to visit him at Fort Bragg, North Carolina and that if he had not been at Fort Bragg his brother might not have died.  He stated that while he was away from the Army he had helped out at home.  But since the accident his father was drinking a lot and most of the time he did not work.  The applicant stated he did not feel he could take the Army anymore and requested that the commander take his statement in consideration.

7.  On 9 February 1971, the applicant's company commander recommended approval of the applicant's request for discharge for the good of the service.  The commander stated that the applicant was under charges for being AWOL 686 days, from the time he had been apprehended.

8.  On 10 February 1971, the applicant's battalion commander wrote a Memorandum for Record, wherein he stated that the applicant had been interviewed on 14 January 1971 concerning his separation from the service and the possibility of an undesirable discharge.  The commander acknowledged that the applicant:

	a.  was a 25 year old single parent with one child;

	b.  had completed only 8 years of education;

	c.  went AWOL from basic combat training after his 6-year old brother had been killed in an automobile accident;

	d.  subsequent to court-martial, he elected to go AWOL again because he "just couldn't handle it"; and

	e.  would not return to duty and he was prepared to accept an undesirable discharge.

9.  The separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.

10.  On 4 March 1971, the applicant was discharged accordingly.  He had completed a total of 4 months and 8 days of creditable active military service and he had accrued a total of 933 days of time lost due to AWOL and confinement.

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

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, an undesirable discharge was authorized at the time of the applicant's discharge.

13.  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.

14.  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.

15.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days, with apprehension, is a dishonorable discharge and confinement for 1 year and 6 months.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to honorable because he feels the circumstances surrounding his leaving the Army were not given the proper consideration.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The battalion commander's memorandum for record clearly shows the applicant's unfortunate loss of his brother, parental status, and multiple absences were considered.

4.  The unfortunate loss of his brother was most likely a significant mitigating factor in determining the outcome of his special court-martial for AWOL.  However, his subsequent absence of more than 2 years did not merit the same level of consideration.  Accordingly, the applicant's lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

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

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)                                         AR20100016497



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ABCMR Record of Proceedings (cont)                                         AR20100016497



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