IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100025970 


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 his undesirable discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states he was a good Soldier when he was there and he has been a law abiding citizen all his life.  His girlfriend was pregnant and seeing his best friend.  He departed absent without leave (AWOL) and went home to find he had lost his baby, girlfriend, and best friend all at once.  When he returned to Fort Leonard Wood, MO he could not concentrate on anything.  He got depressed in April 1971 and went AWOL again.  He returned in September 1971 and spent 
3 months in the stockade.  He was told at the time of his discharge it would be changed to a general discharge within 6 months.  He believes his problems were also due to his age.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 military records show he enlisted, at age 17 with parental consent, on 13 January 1971 for a period of 2 years.  He successfully completed basic combat training.  However, he did not complete advanced individual training (AIT).  

3.  He departed AWOL on 4 April 1971.  He was apprehended in Macon, MO and returned to military control on 15 April 1971.  He again departed AWOL on 
22 April 1971 and surrendered to civilian authorities in Hannibal, MO on 
7 September 1971 and was returned to his unit on 10 September 1971.

4.  A DA Form 268 (Report for Suspension of Favorable Personnel Action), dated 10 September 1971, indicates he was pending a special court-martial with possible discharge under the provisions of Army Regulation 635-200 (Personnel Separations).

5.  His official military personnel file (OMPF) does not contain the court-martial charge sheet or the applicant's written request for discharge for the good of the service.  

6.  His commander and intermediate commanders recommended approval of his request for discharge for the good of the service with an undesirable discharge.

7.  On 18 October 1971, the appropriate authority approved his request for discharge for the good of the service and directed he be discharged under the provisions of chapter 10 of Army Regulation 635-200 with an undesirable discharge.

8.  On 10 November 1971, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service with an undesirable discharge.  He completed 3 months and 28 days of net service that was characterized as under conditions other than honorable.  He had 183 days time lost due to AWOL and confinement.

9.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 26 November 1980, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined he was properly discharged.


10.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included 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.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.  

11.  Army Regulation 635-200 states 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 U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application to either the ADRB or the ABCMR requesting a change in discharge.  Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable.

2.  The applicant’s age at time of enlistment was noted.  However, many Soldiers were enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly-issued discharge.

3.  Although the applicant's separation package is not available, in order for him to be discharged under the provisions of chapter 10 of Army Regulation 635-200, he would have had to have committed an offense or offenses for which the authorized punishment included a punitive discharge and charges would have been preferred.  He then would have voluntarily requested discharge and acknowledged that he could receive an undesirable discharge.

4.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is presumed that the type of discharge and the reason for separation were appropriate considering his overall record of service.  
5.  He had more time lost (183 days) than he did net active service (118 days) and he did not complete AIT.  Therefore, his service is considered unsatisfactory and there is no basis to upgrade his undesirable 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)                                         AR20100025970





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ABCMR Record of Proceedings (cont)                                         AR20100025970



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