IN THE CASE OF:	  

		BOARD DATE:	  26 July 2011

		DOCKET NUMBER:  AR20110000036 


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 an honorable discharge or a general discharge under honorable conditions.

2.  The applicant states he did not know he could request an upgrade of his discharge.  He states he resigned due to medical reasons involving "his mother and education of his dad."  He states that due to the economy and unemployment he can no longer afford private medical insurance.  He was diagnosed with high blood pressure and an enlarged heart.

3.  The applicant indicated that he was providing the original letter of resignation he provided to the Department of the Army, Fort Lewis, WA in 1971.  However, this letter was not attached to his application when it was received.

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.  He enlisted in the Regular Army on 12 March 1970 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 61A (Seaman).

3.  On 13 October 1970, he accepted nonjudicial punishment (NJP) for:

* being absent without leave (AWOL) from on or about 8 September to 
11 September 1970
* being AWOL from on or about 12 September to 8 October 1970

4.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 26 May 1971, indicates he was pending action for being AWOL from 
4 March to 26 May 1971.

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.  On 25 June 1971, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) for the good of the service with an undesirable discharge.  He completed 11 months and 22 days of net service that was characterized as under conditions other than honorable.  He had 112 days of lost time due to being AWOL and in confinement.

7.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

8.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  

   a.  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.  


	b.  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.

   c.  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.

DISCUSSION AND CONCLUSIONS:

1.  His separation package is not available for review.  However, 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.

2.  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.  

3.  He had 112 days of lost time after having been in the Army for only 
11 months.  Therefore, his service is considered unsatisfactory and there is no basis to upgrade his undesirable discharge to either an honorable or a general 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)                                         AR20110000036



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110000036



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1