BOARD DATE:	  1 September 2011

		DOCKET NUMBER:  AR20110002933 


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 an upgrade of undesirable discharge (UD) to a general discharge (GD).

2.  The applicant states:

	a.  there were extenuating circumstances that occurred at the time of discharge which he did not mention;

   b.  he returned home to save his marriage after his wife threatened to leave him for someone else.  He arrived at home too late and blamed the military for his failed marriage which resulted in continual absence because he did not care what happened to him at that time; and
   
   c.  he now knows there is no one to blame but himself and requests that favorable consideration be given to his application for an upgrade of his discharge.
   
3.  The applicant provides a:

* Self-authored statement
* DD Form 214 (Armed Forces of the United States Report of Transfer or 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 military record shows he enlisted in the Regular Army on 17 November 1972.  It also shows he never completed his initial entry training.

3.  His DA Form 20 (Enlisted Personnel Record) shows he was reported absent without leave (AWOL) during the following three separate periods totaling 31 days of lost time:

* 22-24 January 1973 (3 days)
* 31 January - 11 February 1973 (12 days)
* 25 February - 10 March 1973 (16 days)

4.  On 23 February 1973, he accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for departing AWOL from 22-24 January 1973 and 1-12 February 1973.

5.  On 13 March 1973, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ for being AWOL from on or about 25 February to 9 March 1973 and from 
9 -11 March 1973.

6.  On 19 March 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

7.  In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated he understood he could face substantial prejudice in civilian life if he were issued an undesirable discharge.

8.  On 18 April 1973, the separation authority approved the applicant's request for discharge and directed that he be discharged under the provisions of Army Regulation 635-200, chapter 10, with a UD.

9.  On 1 May 1973, the applicant was discharged accordingly in the lowest enlisted rank of PVT/E-1.  His DD Form 214 shows he completed 4 months and 24 days of active military service for the period covered.

10.  On 14 August 1980, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and voted to deny his request for an upgrade.

11.  Army Regulation 635-200 (Personnel Separations) 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 discharge (HD) or GD is authorized, an under other than honorable conditions discharge is normally considered appropriate.  However, a UD was considered appropriate at the time the applicant was discharged.

	b.  Paragraph 3-7b provides that a GD 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UD should be upgraded to a GD due to extenuating circumstance involving personal problems.

2.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL for 31 days during his brief period of active service of nearly 5 months.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

3.  The applicant’s administrative separation 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 reasons therefore were appropriate considering all the facts of the case.  Considering the multiple AWOL offenses during his short period of active duty, his service clearly did not support a GD or HD.

4.  There is also no evidence that the applicant took any action to address any personal problems that he may have been experiencing through his chain of command, the chaplain or by any other means.  He had many legitimate avenues he could have used to address his personal problems without committing the numerous AWOL offenses that he committed. 

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)                                         AR20110002933



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ABCMR Record of Proceedings (cont)                                         AR20110002933



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