IN THE CASE OF:	  

		BOARD DATE:	  1 March 2011

		DOCKET NUMBER:  AR20100021747 


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 an upgrade of his undesirable discharge to a general discharge.

2.  The applicant states:

* he was drafted at a time that he was the only parent to his 5-month old daughter
* he kept going home to take care of his daughter and to keep her safe
* his daughter was not in a stable home from the time he was drafted
* after explaining his situation his supervisor asked if he wanted to stay in the Army or if he wanted to leave
* he chose to be an honorable father
* he never intended to leave the military

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* an undated, unaddressed letter of congratulations from Headquarters, U.S. Army Personnel Center



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 was inducted into the Army on 23 June 1969.

3.  On 18 November 1969, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 1 September to 29 September 1969.

4.  On 23 March 1972, the applicant was notified that chargers were pending against him for being AWOL during the following periods:

* 21 December 1971 until 29 February 1972
* 22 October 1970 until 28 October 1970
* 31 August 1970 until 6 October 1970

5.  He acknowledged receipt of the notification and after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial.  In his request for discharge, the applicant acknowledged he understood the following:

* if his request for discharge were accepted, he could be discharged under other than honorable conditions 
* as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits
* he could be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge

6.  The appropriate authority approved the request for discharge on 28 April 1972 and directed the issuance of an Undesirable Discharge Certificate.  Accordingly, on 1 June 1972 the applicant was discharged under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  The DD Form 214 he received shows he completed 1 year, 7 months, and 10 days of total active service.  He had approximately 140 days of lost time due to AWOL and/or confinement.

7.  A review of his records does not show he ever petitioned the Army Discharge Review Board 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, the 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.

9.  Army Regulation 635-200 provides at:

	a.  paragraph 3-7a 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; and

	b.  paragraph 3-7b 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  However, the type of discharge he received was appropriate considering all of the facts of the case.
2.  His records show he was convicted by a special court-martial of being AWOL and he had approximately 140 days of lost time due to AWOL and confinement.  Considering his numerous acts of indiscipline, it does not appear that the character of his service is too harsh.

3.  His contentions regarding his daughter have been considered.  However, they are not substantiated by the evidence of record.  There is no evidence in the available record, nor has he submitted any evidence, showing that he was AWOL due to being the only parent of a 5-month old child.  Furthermore, the available evidence fails to show he sought assistance through his chain of command for the reasons that he now contends were the cause of his AWOL.  Considering the nature of his offenses, the undesirable discharge he received appropriately reflects his overall record of service.

4.  In view of the foregoing the applicant's request should be denied.

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)                                         AR20100021747



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100021747



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1