IN THE CASE OF:	  

		BOARD DATE:	  3 November 2011

		DOCKET NUMBER:  AR20110009532 


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 undesirable discharge (UD) be upgraded to a general discharge.

2.  He states:

* the UD that he was issued is in error because his personal circumstances  forced him to be absent without leave (AWOL) 
* he returned to duty after the circumstances were resolved 
* he wanted to fulfill his service obligation, but he was forced to resign

3.  He provides his DD Form 214 (Report of Separation from Active Duty), two witness statements, and 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, 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 30 November 1973 for a period of 3 years.  

3.  On 22 July 1974, charges were preferred against him for being AWOL from 1 April to 21 July 1974.  

4.  He consulted with legal counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  In doing so, he acknowledged he might encounter substantial prejudice in civilian life.  He also acknowledged he might be ineligible for many or all Army benefits administered by the Veterans Administration if an undesirable discharge was issued.  He elected to submit statements in his own behalf.  He stated he got tired of all of the mess.  He did not make enough money to make car payments, or to help his mother, and he did not like the Army.  He just wanted to get out.

5.  The separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate.

6.  He was discharged on 29 August 1974 after completing 4 months and 19 days of creditable active service with 141 days of lost time.

7.  He provided a witness statement from his brother who attests:

	a.  the applicant's mother was in a car accident that left her in a coma for 
3 months.  The Army would not give him leave so he left without authorized leave.

	b.  the applicant stayed with his mother during the time she was in the coma.  After she regained consciousness the applicant returned to Fort Bragg, NC.

	c.  the applicant wanted to stay in the Army, but his commanding officer told him to take the UD or he would be convicted by a general court-martial.  

8.  He provided a second witness statement from his son who attests the applicant(‘s):



	a.  discharge was unjust because the circumstances that led to his discharge were not given adequate consideration.

	b.  reported the circumstances to his commanding officer before he went AWOL and explained his mother was in a near-fatal car wreck that left her in a coma.

	c.  commanding officer denied him emergency leave.

	d.  went AWOL in order to be at his mother’s bedside.  He returned to duty after his mother’s health improved.  The applicant was not given the opportunity to explain his situation or continue in the military.

9.  He provided a self-authored statement in which he admitted that he left his unit without leave because the commanding officer would not grant him emergency leave.  He reemphasized that his mother was in a car accident, she was in a coma, and he left to be by her side.  He stated he returned to Fort Bragg and was willing and hopeful he would have a choice to either continue in the military or be discharged.  To his surprise, he was given the ultimatum to take a UD or be court-martialed.  

10.  On 16 January1975 and 22 January 1982, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharged.

11.  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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions regarding the reasons he was AWOL are acknowledged.  However, the applicant had many legitimate avenues through which to obtain assistance or relief without committing the misconduct (AWOL) which led to his discharge.  He was AWOL for 141 days; emergency leave would not have been granted for much more than 30 days.  The available evidence is insufficiently mitigating to warrant an upgrade of his discharge.

2.  The applicant’s record shows he was charged with the commission of the offense of AWOL which is punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

3.  His service record shows he had 141 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

4.  The applicant’s witness statements are noted.  However, these statements alone are insufficient to grant the relief requested.  

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)                                         AR20110009532



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110009532



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1