IN THE CASE OF:	  

		BOARD DATE:	  22 February 2012

		DOCKET NUMBER:  AR20110016590 


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 his under other than honorable conditions discharge to a general/under honorable conditions discharge.

2.  The applicant states the reason he departed his unit in an absent without leave (AWOL) status was because he lost two children during his period of service; one died 3 hours and 5 minutes after birth and the other was stillborn.  During this time, his family doctor wrote three letters requesting that he be returned home because his wife had suffered a nervous breakdown.  The applicant provided one letter to his company commander and another to the Red Cross.  The applicant attests that he was also in a mentally unstable condition and was issued a 1 month physical limitations profile which was subsequently extended to 6 months.  He adds that during this time, he learned he was inducted with sclerosis.  The applicant further states that when he went home to be with his wife, he was unable to make proper decisions and return to his military duties.
He concludes he later realized that it was a terrible mistake to remain at home without authority.

3.  The applicant provides:

* A Certificate of Death
* A letter from the Department of Veterans Affairs (DVA)




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 inducted into the Army of the United States on 18 March 1970.  He completed initial entry training and underwent on-the-job-training prior to being awarded military occupational specialty 94A (Cook).  The highest rank/grade he attained while serving on active duty was private/E-1.

3.  On 26 June 1970, the applicant accepted punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for departing his unit in an AWOL status for 1 day.

4.  The applicant's record contains a DA Form 20 (Enlisted Qualification Record) which shows he departed his unit in an absent without leave (AWOL) status during the following periods from:

* 24 July to 21 August 1970
* 22 August 1970 to 2 August 1971
* 1 to 14 October 1971

5.  Holding Company, U.S. Army Personnel Control Facility (PCF), Fort Riley, KS, Unit Orders Number 1, dated 14 September 1971; show the applicant was placed in an excess leave status for 7 days pending action of his administrative discharge with a reporting date of 21 September 1971.  The Special Instructions portion of these orders informed the applicant that failure to return to the PCF on the reporting date could result in him being reported as an absentee wanted by the Armed Forces.

6.  The complete facts and circumstances leading to the applicant's discharge are not available for review with this case.  However, his record contains Headquarters, 1st Infantry Division (Mechanized) and Fort Riley, KS, Special Orders Number 286, dated 13 October 1971, which show he was to be discharged 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) on 14 October 1971 with service characterized as undesirable and the issuance of a DD Form 258A (Undesirable Discharge Certificate).

7.  His record also contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows he was discharged accordingly on 14 October 1971.  He completed 5 months and 28 days of total active service with 389 days of time lost during the aforementioned periods during which he was AWOL. 

8.  His record contains a memorandum, Subject:  Discharge from Military Service, dated 14 October 1971, and addressed to his home of record.  This memorandum shows the applicant was informed he was discharged on 14 October 1971 and states actual notice of the discharge was not provided to him in person because at the time of discharge he was in an AWOL status.

9.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  The applicant provides:

	a.  A Certificate of Death issued by the Michigan Department of Public Health which shows his son was born on 29 July 1971 and died after living only 3 hours and 5 minutes.

	b.  A letter from the Regional Office of the DVA located in Detroit, MI, dated 28 April 2004, which shows he was denied entitlement to DVA benefits based upon his characterization of service.

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, 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 at the time the applicant was discharged.

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 contention that his record should be corrected by upgrading his undesirable discharge was carefully considered and determined to lack merit.

2.  The fact that he and his wife suffered the loss of two children is regrettable.  However, there is no evidence of record and he did not provide any evidence that shows he sought help with coping with the loss of his children, adjusting to the military, or that he contested the nature of his discharge.

3.  The evidence of record shows he was AWOL on three occasions for a combined total of 389 days.  Although his record is void of the specific facts and circumstances surrounding his discharge, it appears he was charged with the commission of offense(s) 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.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110016590





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ABCMR Record of Proceedings (cont)                                         AR20110016590



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