IN THE CASE OF:	  

		BOARD DATE:	    24 April 2012

		DOCKET NUMBER:  AR20110020204 


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 (UD) to a general discharge (GD).

2.  The applicant states:

	a.  he competently and honorably performed his duties during his active duty service;

	b.  prior to enlisting in the Army, he received a few speeding tickets and was unable to pay them;

	c.  while driving in his hometown on leave after basic training, he was stopped, arrested, and put in jail because his driving privilege was suspended;

	d.  he was prevented from returning to duty because he was in jail and charged with being absent without leave (AWOL);

	e.  the Army never gave him a chance to overcome this event; and

	f.  he was informed his discharge would be upgraded in 6 months and it is his hope that consideration will be given to upgrading his discharge due to the passage of time, his duty performance, and his attempt to fulfill his obligation the best he could.

3.  The applicant provides:

* a self-authored statement
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a Lane County Veterans Service Office Letter

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.  On 7 May 1969, the applicant was inducted into the Army of the United States.  He completed basic combat training at Fort Lewis, WA.

3.  His DA Form 20 (Enlisted Personnel Record) shows he departed absent without leave prior to attending advanced individual training.  Item 44 (Time Lost) shows he accrued a total of 1,544 days of time lost during:

* 26 July - 2 September 1969 (39 days)
* 15 - 19 October 1969 (5 days)
* 20 October 1969 - 6 May 1971 (564 days)
* 7 May 1971 - 27 November 1973 (936 days)

4.  On 27 April 1970, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 20 October 1969 to 27 November 1973.

5.  On 17 December 1973, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a 

UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge 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.

6.  In the applicant's request for discharge he acknowledged that 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 (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated he understood he could face substantial prejudice in civilian life if he were issued a UD.  The applicant also submitted a statement in his own behalf where he indicated:

	a.  he had a wife and three small boys who needed his care, attention, love and support and because he had been on his own since the age of 14, he understood the importance of parenting;

	b.  he was a licensed master plumber and started a business with his friend from scratch that had become very successful; and

	c.  he acquired expensive equipment that he stood to lose if he was not present to operate his business and as a result he wanted to be quickly discharged from the Army.

7.  The separation authority approved the applicant's request for discharge and directed his discharge under the provisions of Army Regulation 635-200,
chapter 10 with a UD and reduction to the lowest enlisted grade.

8.  On 11 January 1974, the applicant was discharged accordingly.  His DD Form 214 shows he completed 5 months and 11 days of total active service.

9.  On 4 June 1981, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable, and voted to deny his request for an upgrade.

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

	a.  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(s) charged, the type of discharge normally given under the provisions of this chapter, the loss of VA 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.

	b.  Paragraph 3-7b provides that a GD 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 (HD).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UD should be upgraded because it was his intention to return to duty and because he was told it would be upgraded within
6 months of his discharge.  The U. S. Army does not have, nor has it ever had a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if it is determined the characterization of service or the reason for discharge or both were improper or inequitable.

2.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL for 1,544 days.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.  In addition, he stated he needed to be expeditiously discharged from the Army to return home to take care of his family and operate his self-owned business, thereby indicating he had no intentions of fulfilling the military service obligation for which he was inducted.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  Considering the length of his AWOL, his service clearly did not support a GD or HD at the time of his discharge and it does not support an upgrade now.

4.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20110020204



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ABCMR Record of Proceedings (cont)                                         AR20110020204



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