IN THE CASE OF:	  

		BOARD DATE:	  23 August 2012

		DOCKET NUMBER:  AR20120004184 


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 or general under honorable conditions.

2.  The applicant states he has been a productive member of the community since his discharge.  For his own self-esteem and that of his family, he wishes to have his discharge upgraded.  He believes that when he was in the service he was given poor advice by an attorney he had engaged as a result of marital problems.  The attorney advised him to be absent without leave (AWOL) several times in order to qualify to "resign for the good of the service."

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 complete military records are not available for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, the applicant's DD Form 214 is sufficient to conduct a fair and impartial review of his request.

3.  The applicant's DD Form 214 shows he enlisted in the Regular Army on 25 May 1966.  He was awarded military occupational specialty 72B (Communications Center Specialist).  He had seven separate periods of AWOL totaling 219 days of lost time.  On 31 August 1970, he was discharged under conditions other than honorable and was issued a DD Form 258A (Undesirable Discharge Certificate).  The reason and authority shows he was administratively discharged for the good of the service under the provisions of Army Regulation 600-200 (Personnel Separations), chapter 10.  He completed 3 years, 7 months, and 27 days of creditable active duty service.

4.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

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

	a.  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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

	c.  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.  
6.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to honorable or general under honorable conditions because he has been a productive member of his community since his discharge and he desires it for his own self-esteem and that of his family.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his record of AWOL.

3.  The applicant's claim of good post-service conduct is noted.  However, it does not sufficiently mitigate his 219 days of lost time.

4.  In view of the above, the applicant's record does not merit an upgrade of his discharge.  Therefore, 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 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)                                         AR20120004184



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ABCMR Record of Proceedings (cont)                                         AR20120004184



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