IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100028357 


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 discharge to general under honorable conditions.

2.  The applicant states he enlisted when he was 18 years of age.  He made a few mistakes when he was young.  There were verbal altercations with superior ranking officers, but nothing physical.  He had a drinking problem and remembers being absent without leave (AWOL) two or three times.  He feels the discharge was unjust.

3.  The applicant provides no additional evidence to substantiate his request.

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 11 October 1972.  He completed training as a cook and was stationed at Fort Hood, Texas.  He was advanced to pay grade E-3 on 30 October 1973.

3.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, as follows:

* on 9 March 1973 for dereliction of duty by sleeping while on fire watch
* 19 December 1973 for AWOL from 4 to 9 December 1973
* 16 January 1974 for AWOL from 10 January to 13 January 1974
* 25 January 1974 for AWOL from 18 January to 22 January 1974
* 24 April 1974 for absence from his appointed place of duty

4.  The chief medical officer reported in a 10 July 1974 disposition form that a complete review of physical and mental examinations failed to reveal any defects that would have contributed to the applicant's misconduct.

5.  On 16 July 1974, charges were preferred for AWOL from 1 May to 18 June 1974 and from 19 June to 1 July 1974.

6.  The applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated he understood the elements of the charges against him and admitted he was guilty of at least one offense for which a punitive discharge was authorized.  He also acknowledged he would receive an under other than honorable conditions discharge and he understood he would be deprived of many or all Army benefits and he might be ineligible for veterans benefits administered by the Veterans Administration.  He stated he understood he could expect to encounter substantial prejudice in civilian life because of the discharge.

7.  The chain of command recommended approval of the applicant's request and the issuance of an undesirable discharge.

8.  The separation authority approved the applicant's request and directed that he be issued an undesirable discharge.  On 7 August 1974, the applicant was so separated.  He had 1 year, 7 months, and 23 days of creditable service and 65 days of lost time.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:

	a.  Chapter 10 provides 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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 claims he had a drinking problem that contributed to his AWOL.

2.  There is no evidence of a drinking problem and the applicant offers no rationale to support the idea that such a problem would excuse or mitigate his misconduct.

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

4.  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 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)                                         AR20100028357



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ABCMR Record of Proceedings (cont)                                         AR20100028357



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