BOARD DATE:	7 November 2013

		DOCKET NUMBER:  AR20130005565 


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 an honorable discharge.

2.  The applicant states his wife was having their baby and he asked to go home to see the baby.  The sergeant said no.  He used bad judgment and he went absent without leave (AWOL) to see his baby daughter because he was young.  He turned himself in and they gave him every dirty job that came along.  He was young and stupid.  He had 2 years of honorable service but the Army changed. He just wanted to go home.  When he thinks back about it, he should have stayed in and finished his time.

3.  The applicant provides his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) with effective dates of 9 January 1970 and 
20 July 1972.

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 20 December 1967, he enlisted in the Regular Army at the age of 17 with parental consent.  

3.  His DA Form 20 (Enlisted Qualification Record) shows he was AWOL from:

* 30 January to 2 February 1968
* 5 May to 8 May 1968

4.  He served in the Republic of Vietnam from 21 January to 29 November 1969. 

5.  On 9 January 1970, he was released from active duty and transferred to the U.S. Army Reserve (USAR).  He had completed 2 years and 13 days of active service that was characterized as honorable.  He had 8 days of time lost.

6.  On 20 January 1971, he requested to be ordered to active duty for 24 months. His request was approved and he was ordered to active duty for 24 months effective 31 May 1971.

7.  His DA Form 20 shows he was AWOL from 19 November 1971 to 6 February 1972.  There is no disposition in his records for this period of AWOL.

8.  On 7 July 1972, court-martial charges were preferred against him for being AWOL from on or about:

* 29 February to on or about 9 March 1972
* 26 March to on or about 22 June 1972

9.  On 7 July 1972, he voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making his request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* making the request of his own free will
* not making a statement in his own behalf
* afforded the opportunity to speak with counsel prior to making his request
* advised he might be furnished an Undesirable Discharge Certificate


10.  He acknowledged he might expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* might be ineligible for many or all veterans' benefits
* might be deprived of his rights and benefits as a veteran under both Federal and State laws

11.  On 17 July 1972, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of an Undesirable Discharge Certificate.

12.  On 20 July 1972, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service with an undesirable discharge.  He completed 7 months and 5 days of active service that was characterized as under conditions other than honorable.  His DD Form 214 shows he had 198 days of time lost.

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

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

	a.  Chapter 10, in effect at the time, stated a member who was charged with 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, at the time an Undesirable Discharge Certificate was normally furnished to an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.


	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  He served honorably during the period 20 December 1967 to 9 January 1970 and his service was characterized as honorable.  However, during his second period of active duty he had 198 days of lost time due to being AWOL.  Therefore, his service is considered unsatisfactory.

2.  His age at the time he went AWOL was noted.  However, he had already completed a 2-year enlistment and he was 20 years of age when he volunteered for 24 months active duty.  It is not unusual for a Soldier on active duty to have a son or daughter born without their presence.  Therefore, his age cannot be used as a reason to change a properly-issued discharge.

3.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The undesirable discharge he received accurately reflected his overall record of service during his second period of active service.

5.  Based on the foregoing, there is no basis for upgrading his discharge.

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)                                         AR20130005565



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ABCMR Record of Proceedings (cont)                                         AR20130005565



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