IN THE CASE OF:	  

		BOARD DATE:	  17 February 2011

		DOCKET NUMBER:  AR20100021057 


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 an honorable discharge.

2.  He states in effect, that he should have received a hardship discharge instead of an undesirable discharge.  He states that he was the only son in the family and at that time his mother was home alone with a heart condition along with other issues.  He further states the Army should have assisted him with supportive services instead of taking disciplinary action to resolve his issues.

3.  He provides 

* a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 10 May 1972
* a DA Form 20 (Enlisted Qualification Record)
* a Request for Discharge for the Good of the Service letter, dated 
20 January 1972
* a DD Form 47 (Record of Induction), dated 12 December 1968
* two DA Forms 188 (Extract Copy of Morning Report, with dates 
20 January 1972 and 22 January 1972

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.  He was inducted into the Army of the United States on 12 December 
1968 and successfully completed basic combat training and advanced individual training.  He was awarded military occupational specialty 57E (Laundry Bath and Impregnation Specialist).  

3.  Evidence of record shows he was absent without leave (AWOL) for the following periods:

* 26 May 1969 through 26 August 1969
* 2 September 1969 through 20 October 1969
* 31 October 1969 through 1 November 1970
* 28 January 1971 through 11 February 1971

4.  A DD Form 458 (Charge Sheet), dated 19 January 1972, shows charges were preferred against him for being AWOL during the period 24 May 1971 through 
18 January 1972.

5.  On 20 January 1972, after consulting with counsel, he submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an undesirable discharge certificate, that he may be deprived of many or all Army benefits, that he may 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 law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his behalf.

6.  He submitted a statement in his own behalf in which he stated in part, "I am unable to adapt to the military service.  If not released I will go AWOL again and again and continue to do so until I am free.  What better way do I need to express myself than to say I want out."

7.  On 8 May 1972, the appropriate authority approved his request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 and directed that he be issued an undesirable discharge certificate.  On 10 May 1972, he was discharged accordingly.  He had completed 1 year and 1 month of creditable active service with 839 days of lost time due to AWOL and confinement.

8.  Army Regulation 635-200 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, 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.  At the time, an undesirable discharge 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 (emphasis added), 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 should have received a hardship discharge instead of an undesirable discharge.  However, there is no evidence and he has not provided evidence that shows he sought assistance from his chain of command, chaplain, or community support service while coping with his family issues.  It is unfortunate that his mother had a heart condition and he was the only son in the family.  

2.  His administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  In the absence of 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.

4.  His records show that he had five instances of AWOL in addition to three of the AWOL periods being rather lengthy.  He had completed 1 year and 1month of creditable active service with 839 days of lost time due to AWOL and confinement.  Based on these facts, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general or honorable 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)                                         AR20100021057





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ABCMR Record of Proceedings (cont)                                         AR20100021057



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