IN THE CASE OF:	  

		BOARD DATE:	    9 August 2011

		DOCKET NUMBER:  AR20110000635 


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 (UD) be upgraded to a general discharge.

2.  The applicant states he was young, under stress, and responsible for a sick mother and younger brother.  In addition, his baby died just before he graduated from basic combat training.

3.  The applicant provides letters from Angels of Hope, a retired U.S. Air Force chief master sergeant, an official at Lakes-Dunson-Robertson Funeral Home, and a retired colonel.

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 in the Regular Army on 
29 November 1973 and he was awarded the military occupational specialty of combat engineer.

3.  On 20 March 1974, the applicant was convicted by a summary court-martial for being absent without leave (AWOL) from 11 February to 8 March 1974.

4.  The applicant was AWOL from 12 November 1974 to 31 January 1975, at which time he was apprehended by civilian authorities and turned to military authorities.

5.  On 7 February 1975, court-martial charges were preferred against the applicant for being AWOL from 2 September to 9 October 1974 and again from 12 November 1974 to 31 January 1975.

6.  On 24 February 1975, the applicant submitted a request for discharge in lieu of court-martial for the good of the service.  The applicant stated that he had consulted with counsel prior to completing the request and counsel countersigned the request.  In that request the applicant acknowledged that he could receive a UD which may make him ineligible for many or all Veterans Administration (VA) benefits.  The applicant elected to submit a statement with his request for discharge.  In that statement he said "I feel that it would be better for me and better for the Army if I was to be discharged.  I have too many personal problems and these are a hindrance to my adjusting to military life.  I feel that with my problems I will keep going AWOL and the Army would be spending money on me that could go to a better cause."

7.  The applicant's request was approved by the appropriate authority.  Accordingly, on 13 March 1975, he was given a UD.

8.  In the statements provided by the applicant it was said that the applicant was the primary care giver for his mother, brother and aunt from 1999 until October 2010.

9.  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, type of discharge normally given under the provisions of this chapter, the loss of VA 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.  

10.  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.  

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant went AWOL on three occasions.  If he was experiencing hardship conditions, it would be presumed that he would have told either his commander or his legal counsel.

2.  While the statements provided by the applicant show he has selflessly provided care to his mother, brother, and aunt, they also show that he began to provide that care in 1999, 24 years after his discharge.  As such, this is not considered mitigating in this case.

3.  Three instances of AWOL is serious misconduct and warranted a UD.  The applicant asked to be discharged and he acknowledged he understood he could receive a UD and that such a discharge could deprive him of all VA benefits.

4.  In view of the foregoing, there is no basis for granting the applicant’s request.


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)                                         AR20110000635



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ABCMR Record of Proceedings (cont)                                         AR20110000635



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