IN THE CASE OF:	  

		BOARD DATE:	  21 June 2011

		DOCKET NUMBER:  AR20100027011 


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 see item number 6 of his DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).  However, this document is not available.

3.  He provides an undated letter of support from a family friend.

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 15 May 1974.  He successfully completed basic combat and advanced individual training and was awarded military occupational specialty 55B (Ammunition Storage Specialist). 

3.  On 15 April 1975, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 8 to 14 April 1975.

4.  A DD Form 458 (Charge Sheet), dated 21 October 1975, shows charges were preferred against him for being AWOL during the period 30 June 1975 through 15 October 1975.

5.  On 24 October 1975, after consulting with counsel, he 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.  

6.  He acknowledged in his request that he understood he could receive an undesirable discharge, 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 laws.  He also acknowledged he understood that may expect to encounter substantial prejudice in civilian life due to the issuance of an undesirable discharge.  He elected not to submit a statement in his own behalf.

7.  On 7 November 1975, the appropriate authority approved his request for discharge for the good of the service.  He directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.  On 26 November 1975, he was discharged accordingly.  He completed a total of 
1 year, 2 months, and 5 days of total active service with 127 days of lost time due to being AWOL.

8.  He submitted an undated letter of support from a family friend.  The author stated she has known the applicant since he was a little child.  The author further stated after the applicant grew up he enlisted in the Army and would come home and visit and go right back to his station.  The author stated on one of these visits the applicant came home and he was involved in a vehicle accident.  The car he was riding in was rear ended by a young boy who left the scene of the accident.  The highway patrolman who came to investigate took the applicant to jail for an old traffic violation.  The author states “They refused to let him pay the ticket where he could return to base on time."  Upon his returning to his unit he was offered several things and he took the one that would allow him to get out of the Army without any more jail time; he had been in jail for a long time.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  At the time, an undesirable discharge was normally considered appropriate.

10.  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.

11.  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 evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  All requirements of law and regulations were met and his rights were fully protected throughout the separation process.

2.  His records show he received one Article 15 and had two instances of AWOL, one lengthy AWOL totaling 127 days of time lost.  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 the issuance of an honorable or general discharge.

3.  In view of the foregoing, there is no basis for granting the applicant's requested relief.


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)                                         AR20100027011



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ABCMR Record of Proceedings (cont)                                         AR20100027011



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