BOARD DATE:	  8 March 2012

		DOCKET NUMBER:  AR20110017460 


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 undesirable discharge.

2.  He states his mother needed emergency help at home.  He asked his sergeant and a chaplain for permission to help his mother but it was not granted.  He went absent without leave (AWOL) and was subsequently given an undesirable discharge.  He feels his undesirable discharge was unjust.  

3.  He provides no additional documentary evidence in support of this 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.  His military records show he enlisted in the Regular Army on 8 August 1974.  He did not complete initial entry training.
3.  A Headquarters Command Form 2, dated 12 May 1975, indicates he was AWOL from 2-3 February 1975.  This form shows he was pending court-martial charges for being AWOL from 2-8 December 1974 and 10 December 1974 to 16 January 1975.  The reason given for his being AWOL was that the Army was not for him, he needed his freedom, and he wanted to move around, and also due to his being harassed, details, his class leader, his platoon leader was on his case, and he wanted to help at home work for his father.
   
4.  His DA Form 20 (Enlisted Qualification Record) shows he was AWOL:

* from 2 December through 7 December 1974
* from 10 December 1974 through 15 January 1975
* from 2 February to 1 May 1975

5.  His discharge packet is not contained in his records.  However, his record contains a DD Form 214 (Report of Separation from Active Duty) that shows on 6 August 1975 he was discharged under the provisions of Army Regulation 
635-200 (Personnel Separations), chapter 10, for the good of the service - in lieu of court-martial, with issuance of a DD Form 258A (Undesirable Discharge Certificate).  The DD Form 214 he was issued shows he completed a total of 7 months and 17 days of total creditable active service with 132 days time lost.

6.  On 5 February 1988, the Army Discharge Review Board denied his request to upgrade his undesirable discharge.

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

	a.  Chapter 10, in effect at the time, stated a member who had 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(s) 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.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate. 

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence to support his contention his mother needed his emergency help, and he did not mention this at the time as a reason for going AWOL.  He was AWOL on three occasions.  He had a total of 132 days of time lost.  Therefore, his service was unsatisfactory.

2.  It appears he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

3.  While his discharge packet is not available, the Board starts its consideration with a presumption of regularity that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  In view of the foregoing, there is an insufficient basis for upgrading his discharge 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)                                         AR20110017460



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ABCMR Record of Proceedings (cont)                                         AR20110017460



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