IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110006230 


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 discharge under conditions other than honorable be upgraded to an honorable discharge.

2.  The applicant states the first 9 months of his Army life were great.  After basic training his life changed.  He went home on a weekend pass to see his pregnant wife and she convinced him she needed him more than the Army did.  He returned to his old life and job.  Later he turned himself in.  He told a captain that he wanted to go home, so the Army gave him a discharge under other than honorable conditions.  He is sorry for not finishing his service.

3.  The applicant provides a self-authored statement.

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 enlisted in the Regular Army on 14 July 1970.  He completed basic combat and advanced individual training and was awarded military occupational specialty 64A (light vehicle driver).  The highest rank he held while serving on active duty was private first class/E-3.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) during the following periods:

* 7 January to 26 May 1971
* 17 June 1971 to 6 June 1972

4.  The applicant's discharge packet is not available.  However, his DD Form 214 shows he was discharged under conditions other than honorable for the good of the service on 7 July 1972 under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 10.  He completed 7 months and 14 days of creditable active military service with 496 days of lost time due to AWOL.

5.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The ADRB reviewed his case on 13 September 1977 and determined he was properly and equitably discharged.  Accordingly, his request for a change in the character of service and/or reason for his discharge was denied.

6.  The applicant provided a self-authored statement in which he states, in effect, he was AWOL because his wife needed him.

7.  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, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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 to an individual who was discharged for the good of the service.

8.  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.

9.  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 for an upgrade of his discharge under other than honorable conditions to an honorable discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  Lacking evidence to the contrary, the applicant's request for separation for the good of the service to avoid trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 is presumed to have been voluntary, administratively correct, and in compliance with applicable regulations.

3.  There is no evidence of record and the applicant has not provided evidence to show he was not properly and equably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that his rights were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

4.  The applicant's records contain evidence which shows lost time for being AWOL for 496 days.  Based on his record of indiscipline, the applicant's service clearly did not meet the standard of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant 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 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)                                         AR20110006230



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110006230



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1