IN THE CASE OF:	  

		BOARD DATE:	  19 July 2012

		DOCKET NUMBER:  AR20110022688 


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 honorable.

2.  The applicant states he had a family emergency.  His mother became paranoid schizophrenic and his brothers and sister were in state child protection custody.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty), effective 29 January 1975.

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 from the Army National Guard on 25 June 1974.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 51R (Electrician).  The highest rank/grade he attained while serving on active duty was private/E- 2.

3.  On 20 December 1974, court-martial charges were preferred against him for three specifications of being absent without leave (AWOL) for the periods:

* 25 September - 7 October 1974
* 9 October -20 November 1974
* 21 November -11 December 1974

4.  On 17 December 1974, he consulted with counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

5.  In his voluntary request for discharge, he indicated he understood if his request were accepted he may be discharged under other than honorable conditions and issued an Undesirable Discharge Certificate and that by submitting his request he was admitting he was guilty of the charges against him.  He further acknowledged he understood if he received an under other than honorable conditions discharge, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.

6.  He elected to submit a statement in his own behalf.  In his statement he contended that he went AWOL the first time after being denied an administrative discharge under chapter 13 (Unsuitability) and to get away from the Army.  Further, his subsequent AWOL periods were all attempts to be discharged because he felt his family needed him at home after his mother was admitted to a mental institution.

7.  His intermediate commander indicated that although the applicant met the criteria for discharge under chapter 13, Army Regulation 635-200 based on his three AWOL periods, he was capable of performing satisfactorily but used his intelligence to beat the system.  He recommended immediate discharge in the interest of saving the time and expense of a trial and subsequent administrative discharge.

8.  On 15 January 1975, the discharge authority approved his request under the provisions of Army Regulation 635-200, chapter 10, and directed his discharge with the issuance of an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 29 January 1975.

9.  His DD Form 214 reflects he completed 11 months of creditable active service with 43 days of time lost due to AWOL.

10.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  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, a discharge under other than honorable conditions is normally considered appropriate.

12.  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.

13.  Paragraph 3-7b of Army Regulation 635-200 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 argues, in effect, that his discharge should be upgraded because his AWOL was due to a family emergency.  There is no evidence and he has not provided any to show he sought assistance through his chain of command or other agencies to resolve his situation.  Therefore, in the absence of documentation to support his claim, the presumption of regularity must be applied.

2.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The record further shows he admitted he was guilty of being AWOL on three separate occasions: 25 September - 7 October 1974, 9 October -20 November 1974, and 21 November -11 December 1974.  The record also shows he voluntarily requested separation for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial.

3.  His record of service included 43 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service as unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

4.  In view of the above, his request should be denied.

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)                                         AR20110022688





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ABCMR Record of Proceedings (cont)                                         AR20110022688



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