IN THE CASE OF:	  

		BOARD DATE:	    8 March 2012

		DOCKET NUMBER:  AR20110017580 


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.  The applicant states, in effect, that he is deeply sorry and ashamed of doing what he did and he wishes there was some way he could go back and do things differently. He let someone influence him about the military.  He knows it was wrong and he has lived with his head down in shame more than 35 years.  He is not looking for benefits, he just wants his discharge upgraded.

3.  He provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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’s military record shows he was inducted into the Army on 24 September 1969.  He did not complete training; therefore, he was not awarded a military occupational specialty (MOS). 

3.  He was reported absent without leave (AWOL) on 19 November 1969 and dropped from the rolls on 18 December 1969.  He surrendered to military authorities on 24 June 1975 and was returned to military control.

4.  On 27 June 1975, a DD Form 458 (Charge Sheet) was prepared by the Commander, Personnel Control Facility, U.S. Army Field Artillery Center, Fort Sill, Ok showing he was charged with one specification of being AWOL from 19 November 1969 to on or about 24 June 1975.

5.  On 1 July 1975, after consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Veterans Administration (VA).  He waived his rights and elected to submit a statement in his own behalf.  

6.  In the applicant's statement, dated 6 July 1975, he indicated that he entered the Army because he was drafted.  He had 9 years of education and no civilian convictions.  He was not awarded an MOS when he left Fort Ord, Ca.  He only served in the Army for about 5 to 6 weeks and left because he simply could not adjust to the military.

7.  On 10 July 1975, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that he be issued an Undesirable Discharge Certificate.

8.  On 15 July 1975, he was discharged in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial and issued a UD.  He was credited with completing 2 months and 17 days of active service with 2,043 days of time lost.

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


10.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 provided that 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 in lieu of trial by court-martial at any time after the charges have been preferred.  A UD was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

11.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

12.  Army Regulation 635-200, paragraph 3-7b, stated 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.  The applicant's contentions have been noted; however, on 27 June 1975, he was charged with being AWOL from 19 November 1969 to on or about 24 June 1975.  Upon receipt of the charges he voluntarily requested discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  

2.  At the time, he also acknowledged that he understood he could be furnished an UD.  In a written statement he indicated that he left his unit in an AWOL status because he just could not adjust to the military.  

3.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

4.  Without evidence, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.

5.  The evidence of record confirms his discharge processing was accomplished in accordance with applicable regulations and the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  

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)                                         AR20110017580



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ABCMR Record of Proceedings (cont)                                         AR20110017580



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