IN THE CASE OF:	  

		BOARD DATE:	  24 January 2011

		DOCKET NUMBER:  AR20100017835 


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 to a general discharge.

2.  The applicant states he enlisted at age 18 and after 6 months and 17 days he made the mistake of going absent without leave (AWOL).  He acknowledges he did wrong by going AWOL but asks is this cause to hold it over his head for the rest of his life.  He is now a pastor and he is working with youths to help them not make the same mistakes he did.  He asks the Board to remember that the 1970's were a difficult time for the country and that the government later offered amnesty to resolve the "youthful crisis" in the lives of those who fled the country. He was not offered amnesty for his youthful error and asks that his "short but vital military record" be considered and afforded an upgrade of his character of service.

3.  The applicant provides copies of his DD Form 214 (Report of Transfer or Discharge) and a Department of Veterans Affairs (VA) letter denying him VA benefits because of his discharge under other than honorable conditions.

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 on 30 September 1972 and he completed only basic training.

3.  On 27 March 1973 he went AWOL and he remained absent until 8 June 1973 (93 days) when he was apprehended by civilian authorities and returned to military control.

4.  On 15 June 1973, after consulting with counsel and being advised of his rights and options, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial, for an offense punishable by a bad conduct or dishonorable discharge.  He acknowledged that if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.

5.  On 2 July 1973, the separation authority approved the discharge and directed the issuance of an Undesirable Discharge Certificate.

6.  On 19 July 1973, the applicant was discharged accordingly.  He completed
6 months and 17 days of total active service with 93 days of time lost.

7.  On 8 May 1987, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

8.  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 VA 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. 

9.  Army Regulation 635-200, paragraph 3-7b, states a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

10.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  A third of the applicant's limited period of service was spent in an AWOL status and that status only ended because he was apprehended by civilian authorities.  His limited creditable service cannot be construed in any way as having being "vital" as he did not complete training in the military specialty for which he enlisted.  As such, he wasted resources, time, and money during a period of war.

3.  The applicant’s undocumented post-service activities are not shown to be so meritorious as to outweigh the offense that resulted in his discharge especially in light of the fact that his military record is void of significant service.

4.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

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)                                         AR20100017835



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ABCMR Record of Proceedings (cont)                                         AR20100017835



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