IN THE CASE OF:	  

		BOARD DATE:	   20 September 2011

		DOCKET NUMBER:  AR20110004552 


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 under other than honorable conditions discharge be upgraded.

2.  The applicant states, in effect, he went absent without leave (AWOL) because he was not earning enough money to support his family.  He sought out civilian employment to help him meet his financial responsibilities. 

3.  The applicant provides a self-authored statement and a copy of his 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, and 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 record shows that he enlisted in the Regular Army on 
22 January 1973.  He completed basic combat training and was in advanced individual training for military occupational specialty 11B (infantry).  The highest rank he attained while serving on active duty was private/E-2.

3.  The applicant's record contains a DA Form 268 (Report for Suspension of Favorable Actions) which shows the applicant was reported AWOL during the period 29 May 1973 through 31 May 1973.

4.  An extract of a morning report prepared, on 6 May 1974, show that the applicant was reported AWOL during the following periods:

* 11 June 1973 through 11 July 1973
* 12 July 1973 through 9 April 1974.

5.  On 25 April 1974, charges were preferred against the applicant for being AWOL on three occasions.

6.  The applicant's records contain a Standard Form 93 (Report of Medical History), dated 17 April 1974.  The Standard Form 93 shows that the applicant was in good health at the time of the medical examination.

7.  On 25 April 1974 the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 10.

8.  The applicant consulted with legal counsel and was fully advised of the nature of his rights under the Uniform Code of Military Justice, the elements of the offenses for which he was charged, the possible effects of an under other than honorable conditions discharge, and the procedure and rights that were available to him.  

9.  In his request for discharge the applicant acknowledged he understood by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army 
benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

10.  The applicant's chain of command and the separation authority approved the applicant's request to be discharged for the good of the service and ordered that he receive an undesirable discharge. 

11.  On 6 May 1974, separation orders were issued with the effective date of discharge listed as 8 May 1974.  The orders issued the applicant an under conditions other than honorable discharge.

12.  On 8 May 1974 the applicant was discharged accordingly.  He completed 
5 months and 18 days of total active service with 303 days lost time due to AWOL.

13.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute.  The applicant applied to the ADRB and was denied relief on 4 April 1975 and 8 September 1981.  On both occasions the ADRB determined that the applicant was properly and equitably discharged.

14.  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.  

15.  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.

16.  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 request that his discharge be upgraded has been carefully considered and determined to be without merit.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  Evidence shows that having been advised by legal counsel, he voluntarily requested discharge for the good of the service.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  Based on the applicant's record of indiscipline which include being AWOL for 303 days, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either an honorable or a general discharge.

4.  While it is commendable that the applicant wanted to take care of his family, it is insufficient basis to upgrade a discharge based on 303 days of lost time.

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)                                         AR20110004552



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ABCMR Record of Proceedings (cont)                                         AR20110004552



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