IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20110001628 


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 or more desirable discharge.

2.  The applicant states he was deemed absent without leave (AWOL) and discharged because his fiancée was pregnant.  Her parents were going to place her in a home and allow their child to be adopted.  He requested his command allow him to return home to take his fiancée and unborn child to his parents and marry her.  His command denied his request so he went AWOL to take care of them.  He states he was told his discharge would be automatically upgraded within 6 months of his discharge date.  However, he recently discovered it was not upgraded.

3.  The applicant provides no additional evidence in support of his application.

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 21 August 1974 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer).

3.  On 8 January 1975, he was assigned to Company C, 20th Engineer Battalion at Fort Campbell, KY.

4.  On 2 April 1975, he accepted nonjudicial punishment for being absent from his appointed place of duty.

5.  On 12 May 1975, he departed AWOL and he was dropped from the rolls on 12 June 1975.  On 28 August 1975, he was apprehended by the Federal Bureau of Investigation (FBI) in Columbus, OH and returned to military control.

6.  On 10 September 1975, court-martial charges were preferred against him for being AWOL from on or about 12 May to on or about 28 August 1975.

7.  The applicant consulted with counsel and voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* guilty of the offense with which he was charged
* making the request of his own free will
* advised he may be furnished an Undesirable Discharge Certificate
* advised he could submit statements in his own behalf

8.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

9.  He submitted a statement with his request for discharge.  He stated when his mother went to the hospital he went AWOL to assist her.  Then his girlfriend got pregnant and they wanted to get married.  Her parents sent her to Spain and wanted her to get an abortion.  When she returned he went AWOL and they got married.  It seemed that everywhere he went in the Army he got yelled at and bossed around all the time.  He stated if his discharge was disapproved he would have to go AWOL again because his wife was pregnant and he needed to make some money for hospital bills.  He had a job but if he stayed in the Army much longer he would lose it.

10.  On 15 September 1975, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of an Undesirable Discharge Certificate.

11.  On 2 October 1975, he was discharged and issued an Undesirable Discharge Certificate.  He completed 9 months and 19 days of active service that was characterized as under other than honorable conditions.  He had 115 days time lost.

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

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

	a.  Chapter 10 states 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.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

	b.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

	c.  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 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.  The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge.

2.  The applicant was charged with an offense punishable by a punitive discharge.  He consulted with counsel, voluntarily admitted guilt to the offense or lesser offenses included, and requested discharge in lieu of court-martial.  He acknowledged in his request for discharge that he could receive an under other than honorable conditions discharge.  

3.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  A discharge under other than honorable conditions is normally considered appropriate when a member is separated under the provisions of chapter 10.  There is no evidence of procedural or other errors that would have jeopardized his rights.  

5.  He was AWOL for 115 days.  The fact that he was apprehended by the FBI shows his lack of intent to return to his unit.  In his statement submitted with his request for discharge he indicated that if his discharge was not approved he would go AWOL again.  Therefore, his service is determined to be unsatisfactory.

6.  In view of the above, there is an insufficient basis to upgrade his discharge to an honorable discharge or a general discharge under honorable conditions.


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)                                         AR20110001628





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ABCMR Record of Proceedings (cont)                                         AR20110001628



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