IN THE CASE OF:	  

		BOARD DATE:  24 May 2012

		DOCKET NUMBER:  AR20110022450 


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 that his undesirable discharge (UD) be upgraded.

2.  The applicant states, in effect, he was drafted and after completing basic training he was called home to support his family.  He applied for a hardship discharge and he was given a UD.  He was not aware that he could apply for an upgrade.

3.  The applicant provides copies his DD Form 214 (Report of Transfer or Discharge) and thirteen character reference letters from friends and family.

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 was inducted into the Army of the United States on 20 May 1969 and completed basic training.  

3.  On 2 August 1969, while attending advanced individual training, he went absent without leave (AWOL) and remained absent until he voluntarily returned on 18 January 1970.

4.  On 3 February 1970, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged he understood that if the request was accepted he could receive a discharge under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood that such a discharge would deprive him of many or all benefits as a veteran and he could expect to experience substantial prejudice in civilian life if he received a UD.  He did not submit a statement on his own behalf.

5.  The applicant's request for separation was accepted and he was discharged on 10 March 1970 with a UD.  He had 4 months and 5 days of creditable service with 170 days of lost time due to being AWOL.

6.  The record contains no evidence of award of any personal decorations, or letters of commendation or appreciation.  His conduct was noted as "good."  There is no evidence the applicant applied for a hardship discharge.

7.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15 year statute of limitations.  

8.  The thirteen character reference letters describe the applicant as a caring, loving person, highly responsible, reliable, trustworthy, respectful, and hard working.  However, none of the letters are addressed to this Board and none indicate how the contents of the letters are relative to his discharge action.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  
	b.  Paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

	c.  Paragraph 3-7c states that an under other than honorable conditions (UOTHC) discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  

	d.  Paragraph 3-7c(7) specifically addresses issuance of a discharge under other than honorable conditions issued under the provisions of chapter 10 of this regulation.

	e.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of a UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had more lost time than creditable service and while it was commendable that the applicant wanted to help his family he had a duty to fulfill his military service obligation.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  The character of service is commensurate with the applicant's overall record of service.

3.  The letters attesting to the applicant’s post-service conduct and activities are noted; however, these activities are not so exceptionally meritorious as to outweigh the offense that resulted in his discharge especially in light of the fact that his military record is devoid of significant service.








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)                                         AR20110022450



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ABCMR Record of Proceedings (cont)                                         AR20110022450



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