IN THE CASE OF:	  

		BOARD DATE:	  17 January 2012

		DOCKET NUMBER:  AR20110019197 


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 under other than honorable conditions discharge to an under honorable conditions discharge. 

2.  The applicant states that he received an Undesirable Discharge Certificate for being absent without leave (AWOL).  He stated that he was home on leave from Germany when his father died.  He took his father’s death hard because they were close.  He turned himself in at the processing station in Atlanta, Georgia.  He was sent to Fort Knox, Kentucky and discharged from there.  He stated that while he was in the Army he had good evaluations and was promoted to E-3 (PFC).

3.  The applicant provides a copy of his DD Form 214, Report of Separation from Active Duty, dated 11 July 1977.

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 records show he enlisted in the Regular Army for a period of 3 years on 26 June 1975 and held military occupational specialty 43M (Fabric Repairman).  He was advanced to E/2 on 26 October 1975, to E/3 on 1 April 1976 and promoted to E/4 on 1 February 1977.  His highest rank/grade he attained during his military service was specialist /E-4.

3.  The applicant’s records show that he was in an AWOL status from 699th Maintenance Company, 85th Maintenance Battalion, APO NY (Germany) on
16 March 1977 and was dropped from the rolls (DFR) on 16 April 1977.    

4.  On 20 May 1977 the applicant surrendered to military authorities at Fort McPherson, GA.  
 
5.  On 13 June 1977 the applicant received reassignment orders to the Special Processing Company, United States Army Personnel Control Facility, United States Army Armor Center (WOUXPRF) Fort Knox, Kentucky.  On the same date a Charge Sheet was prepared indicating that he was AWOL from his assigned unit in Germany, from on or about 28 January 1977 until on or about 20 May 1977. 

6.  On 14 June 1977, he consulted with legal counsel and requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial.

7.  In his request for discharge, he acknowledged that he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also understood that by submitting this request he acknowledged that he was guilty of the charge (s) against him and that under no circumstances did he desire further rehabilitation, because he had no desire to perform further military duty.   He understood that if his request was approved, he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  His request also stated he understood that once his resignation was submitted, it may be withdrawn, whether or not accepted, only with the consent of the commander exercising general court-martial jurisdiction over him.  He submitted a statement concerning his request for discharge.
8.  The applicant provided a statement which stated that on or about 1 January 1977 he was on leave from Germany for 30 days.  During that time his father became ill.  His leave was extended for two weeks.  His father passed away on 19 January 1977.  Due to his mental status from grief he felt he could not return to his unit in Germany.  He stated that at that time he wanted to be released from the army because he wanted something different to do.  He enlisted in the army because he wanted to serve and he was seeking employment.

9.  On 15 June 1977, the company and battalion commanders recommended approval of this discharge under the provisions of chapter 10, Army Regulation 635-200, with the issuance of an Undesirable Discharge Certificate.  

10.  On 24 June 1977, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200.  The separation authority directed he receive an Undesirable Discharge Certificate and that he be reduced to the lowest enlisted grade.  On 11 July 1977, the applicant was discharged accordingly.

11.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged with a characterization of service of under other than honorable conditions.  This form further confirms he completed 1 year, 8 months, and 24 days of creditable active service with 112 days of lost time due to AWOL.

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

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge was considered appropriate at the time.

14.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his discharge be upgraded.

2.  His record shows he was charged with being AWOL from his assigned unit for a total of 112 days a charge punishable by trial by court martial.

3.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.  

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)                                         AR20110005464



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ABCMR Record of Proceedings (cont)                                         AR20110019197



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