BOARD DATE:	  18 October 2011

		DOCKET NUMBER:  AR20110008364 


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, upgrade of his under other than honorable conditions discharge. 

2.  He states he enlisted under the delayed entry program (DEP).  Prior to reporting for training, his daughter died 2 days after her birth.  He reported for training anyway.  He had almost completed "boot camp" at Fort Ord, CA, when he went absent without leave (AWOL) to see his daughter's mother, who had been making demands of him while he was in training.  Upon arrival in Portland, OR, he found her with another man.  He went berserk and started drinking heavily.  He returned himself to military control a little over 2 weeks after going AWOL.  He couldn't console himself after losing a child and the love of her mother.  He was confined at Fort Lewis, WA, and subsequently discharged under other than honorable conditions.  He did not want to get out of the Army.  The Army chose to discharge him with no attempt to complete training or provide treatment.  At the age of 17, he was moldable and had the potential to become a good Soldier.  He screwed up his first chance and did not receive a second.  He has cleaned up his life and is now making every attempt to clear up the past by owning up to his mistakes and errors of judgment.

3.  He indicates he has provided a psychological evaluation dated 1 February 1996; however, this document was not included with 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.  The applicant was born on 5 August 1955.  

3.  On 14 November 1972, he enlisted in the U.S. Army Reserve in the DEP.  On 1 December 1972, he enlisted in the Regular Army (RA).  He was 17 years of age at the time, and a DD Form 373 (Consent, Declaration of Parent or Legal Guardian) shows his mother consented to his RA enlistment.

4.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions) shows he departed AWOL from Fort Ord, CA, and was dropped from the rolls on 5 March 1973.

5.  A DA Form 3836 (Notice of Return of US Army Member from Unauthorized Absence) shows he returned to military control on 20 April 1973 after he was apprehended by civil authorities.

6.  A DA Form 2496-1 (Disposition Form), subject: Request for Discharge for the Good of the Service, dated 2 May 1973, shows he was AWOL from 7 to 8 January 1973, 15 February to 3 March 1973, and 5 March to 20 April 1973.  The Staff Judge Advocate (SJA) who completed the form indicated he qualified for discharge under the provisions of chapters 10, 13, and 14 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), each of which authorized an undesirable discharge.  The form shows his unit commander recommended he receive a general discharge.  The SJA recommended he receive an undesirable discharge.

7.  In item 12 (Article 15s) of the DA Form 2496-1, the SJA noted the applicant stated he had received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, during basic training.  In item 16 (Remarks), the SJA noted the applicant stated he could not adjust to the service and the responsibilities that go with it.

8.  Item 44 (Time Lost under Section 972, Title 10, United States Code and Subsequent to Normal Date [Expiration Term of Service]) of his DA Form 20 (Enlisted Qualification Record) shows he was AWOL from 15 February to 2 March 1973 and from 5 March to 19 April 1973 and in pretrial imprisonment from 20 April 1973 to an unspecified date.

9.  On 7 May 1973, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10 and directed he receive a DD Form 258A (Undesirable Discharge).  

10.  The complete facts and circumstance leading to his discharge are not contained in the available records.  However, his record contains a properly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 29 December 1976 that shows:

* he was discharged under the provisions of Army Regulation 635-200, chapter 10
* his service was characterized as under other than honorable conditions with issuance of a DD Form 258A
* he completed 2 months and 18 days of total active service with 80 days lost

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

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

	a.  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 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 an individual who was discharged for the good of the Service.  

   b.  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.
   
   c.  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 evidence of record does not support the applicant's request for upgrade of his discharge.  

2.  The applicant's record does not include the complete facts and circumstances surrounding his discharge.  It appears he was charged with being AWOL, an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that 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.  He was 17 years of age when he enlisted.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed military service.  While any efforts he has made to overcome difficult circumstances in his life after his discharge are commendable, those efforts alone do not provide a sufficient basis for upgrading his discharge.

4.  His record shows he had 80 days lost due to being AWOL and in confinement and he stated he had received NJP during basic training.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  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)                                         AR20110008364





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ABCMR Record of Proceedings (cont)                                         AR20110008364



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