IN THE CASE OF:	  

		BOARD DATE:	  27 October 2011

		DOCKET NUMBER:  AR20110008539 


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 upgrade of her undesirable discharge to an honorable discharge.

2.  The applicant states she was not guilty of any offenses and she was discriminated against by her black company commander.

3.  The applicant provides no additional evidence.

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.  Having had prior active service, the applicant enlisted in the Regular Army on 29 November 1973 for a period of 3 years.


3.  Item 21 (Time Lost) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows she was absent without leave (AWOL) from:

* 2 April 1974 through 4 April 1974 (3 days)
* 15 May 1974 through 29 May 1974 (15 days)
* 4 June 1974 through 15 September 1975 (469 days)

4.  She was dropped from the rolls (DFR) of the Army on 3 July 1974.  Records show she surrendered to military authorities at Long Beach Shore Patrol, Long Beach, CA on 16 September 1975.

5.  On 23 September 1975, she underwent a mental status evaluation.  The examiner found she met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined she was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and she had the mental capacity to understand and participate in board proceedings.

6.  On 25 September 1975, the applicant's commander notified her that he was initiating action to discharge her under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 15, for being AWOL for 1 year or more.

7.  The commander advised her of her right to have her case considered by a board officers, to appear in person before a board officers, to submit statements in her own behalf, to be represented by counsel, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves her discharge and request her case be presented before a board of officers.

8.  On 25 September 1975, the applicant acknowledged that she had been advised by counsel of the basis for the contemplated action against her under the provisions of Army Regulation 635-200, chapter 15 for misconduct.  The applicant waived all her rights and elected not to submit statements in her own behalf.  In a separate sworn statement, dated the same date, she stated she was AWOL from her unit at Fort Gordon, GA from on or about 4 June 1974 to on or about 16 September 1975.

9.  The applicant also acknowledged that as the result of issuance of an undesirable discharge under conditions other than honorable, she may be ineligible for many or all benefits as a veteran under both federal and state laws and that she may expect to encounter substantial prejudice in civilian life.


10.  On 1 December 1975, the applicant's commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, chapter 15 because of misconduct by reason of AWOL, which continued for
1 year or more.

11.  The applicant's intermediate commanders also recommended approval of the separation action stating that the recommendation was deemed appropriate in view of her negative attitude towards the Army and the gravity of her offense, that rehabilitation was highly unlikely, and that retention of the Soldier was impractical and undesirable.

12.  On 5 December 1975, the separation authority, a major general, approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 15 with an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.

13.  On 23 December 1975, she was discharged accordingly.  She completed
8 months and 23 days of net active service this period and 10 months and 15 days of total active service.  She had a total of 487 days of time lost due to her periods of AWOL.

14.  There is no indication in her records that she petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  There is no evidence of record and the applicant did not provide any evidence to support her claim that she was discriminated against by her commander.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 15 established policy and prescribed procedures for separating members for misconduct - desertion and AWOL.  Under these provisions an individual was considered for discharge when it was determined by an administrative review that there was substantial evidence to support a determination of desertion or AWOL, the AWOL was continuous for 1 year or longer, retention in the service was precluded by regulations or was not considered desirable or in the best interests of the United States, and trial by court-martial on a charge of desertion or AWOL was waived or deemed inadvisable.



17.  Army Regulation, paragraph 3-7a, states 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.

18.  Army Regulation 635-200, paragraph 3-7b, states 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.  

DISCUSSION AND CONCLUSIONS:

1.  A review of her record of service shows she was AWOL for a total of 487 days; therefore, she did not meet the standards of acceptable conduct and performance of duty for Army personnel.

2.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize her rights.

3.  In view of the foregoing, there is no basis for granting her requested relief.

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)                                         AR20110008539



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110008539



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1