IN THE CASE OF:	  

		BOARD DATE:	  18 August 2011

		DOCKET NUMBER:  AR20110002665 


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, in effect, an upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states he received a letter from his mother telling him his father had a brain tumor.  He took the letter to his commander and the commander tore it up and said the applicant was not going anywhere, so he went absent without leave (AWOL).  He is 64 years old and would like to have a good discharge before he dies.

3.  The applicant provides a DD Form 258A (Undesirable Discharge).

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 records show he enlisted in the Regular Army on 27 March 1974 and he held military occupational specialty 11B (Light Weapons Infantryman).  He was awarded the National Defense Service Medal.

3.  On 5 August 1974, he was assigned to the 1st Battalion, 5th Infantry, 25 Infantry Division, Schofield Barracks, HI.

4.  DA Form 3835 (Notice of Unauthorized Absence from the U.S. Army), dated 21 November 1974, shows the applicant went AWOL on 20 November 1974 and he was dropped from the rolls (DFR) on the same date.  Block 31 (Remarks) of this form stated "[The applicant] went AWOL while he was pending an Article 15 for his previous period of AWOL from 13 October to 4 November 1974.

5.  On 10 February 1975, he surrendered to civilian authorities and he was returned to military control on 14 February 1975.  He was assigned to the Personnel Control Facility, Fort Lewis, WA.

6.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However the DD Form 214 (Report of Separation from Active) he was issued shows he was discharged on 25 March 1975, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, conduct triable by court-martial in the rank of PV1 with an Undesirable Discharge Certificate.  He completed 8 months and 15 days of creditable active service and he had 104 days of lost time.  

7.  There is no evidence in the available records to indicate he requested emergency leave due to a family member's illness.

8.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  However, at the time the applicant was discharged an undesirable discharge was 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 of service 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 of service 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 applicant's record is void of the specific facts and circumstances surrounding his discharge.  However, the available evidence shows he went AWOL on two occasions for a total of 104 days and he was DFR on 20 November 1974.  It appears when he was returned to military control, he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation
635-200, chapter 10, are voluntary requests for discharge for the good of the service - in lieu of trial by court-martial. 

2.  It is presumed he voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In the absence of evidence to the contrary, it is also presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  

3.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20110002665



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ABCMR Record of Proceedings (cont)                                         AR20110002665



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