BOARD DATE:	  8 March 2012

		DOCKET NUMBER:  AR20110018201 


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 an upgrade of his undesirable discharge to honorable.

2.  The applicant states he requested transfer to another unit after the death of his wife due to the memory and stress of her loss, but his request was denied.  He was absent without leave (AWOL), but he came back.  He further states he recently discovered he could request an upgrade of his discharge.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and some Department of Veterans Affairs (VA) forms involving a claim for health benefits.

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 in Milwaukee, Wisconsin, on 30 December 1970 for a period of 3 years and training as a clerk.  He completed basic training at Fort Campbell, Kentucky, and advanced individual training at Fort Leonard Wood, Missouri.  He was transferred to Fort Riley, Kansas, for his first and only duty assignment.

3.  On 20 April 1972, he was convicted by a summary court-martial of being AWOL from 10 to 29 March 1972.

4.  The applicant was married on 3 June 1972 and his wife was killed in an automobile accident on 26 July 1972.

5.  On 31 January 1973, nonjudicial punishment was imposed against him for being AWOL from 20 to 29 January 1973.

6.  The applicant was AWOL again on 1 February 1973 and remained absent until he was apprehended by civil authorities on 15 February 1973.  He was provided orders directing him to return to his unit.  He again was AWOL until he was turned in by his mother on 26 February 1973 and returned to his unit.

7.  Meanwhile, on 15 February 1973, his commander initiated action to discharge him from the service for unfitness due to his frequent involvement in incidents of a discreditable nature with civil and military authorities under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13.

8.  On 16 March 1973, the battalion commander interviewed the applicant and applicant informed the commander that all he wanted was to get out of the Army and be with his common-law wife.

9.  The applicant waived consideration of his case by a board of officers and elected to submit a statement in his own behalf wherein he asserted that while he was being paid by the Army on time, he could make more money on the outside to pay his bills off quicker and if the Army did not discharge him, he would keep being AWOL until he was discharged.

10.  The applicant's commander afforded the applicant the opportunity to apply for a hardship or dependency discharge and the applicant declined to submit such a request.  His declination was witnessed by his defense counsel.

11.  The appropriate authority (a major general) approved the recommendation for discharge on 26 March 1973 and directed the issuance of an Undesirable Discharge Certificate.

12.  However, the applicant again was AWOL on 28 March 1973.  On 4 April 1973, he was discharged under other than honorable conditions for unfitness due to his frequent involvement in incidents of a discreditable nature with civil and military authorities under the provisions of Army Regulation 635-200, paragraph 
13-5a(1).  He completed 2 years, 1 month, and 7 days of active service and had 58 days of lost time due to AWOL.

13.  On 30 October 1973, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to a general discharge.  As the basis for his request, he stated he believed his discharge was too harsh, that it hindered his advancement at work, and he desired VA benefits for schooling.

14.  After reviewing all of the available facts and circumstances in his case, the ADRB determined that his discharge was both proper and equitable and voted to deny his request on 3 December 1973.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 in effect at the time contained the policy and outlined the procedures for separating individuals for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

16.  Army Regulation 635-200, paragraph 3-7a, provides that 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.

17.  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 administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.  Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case.

2.  The applicant's contentions and overall record of service have been considered.  However, they are not sufficiently mitigating to warrant an upgrade of his discharge.  His service simply did not rise to the level of an honorable or a general discharge.

3.  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 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)                                         AR20110018201



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ABCMR Record of Proceedings (cont)                                         AR20110018201



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