IN THE CASE OF:	  

		BOARD DATE:	    20 February 2014

		DOCKET NUMBER:  AR20130008927 


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 his undesirable discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states at the time of his service in the Army his wife was pregnant with their first child and having a bad time.  He had asked for time to be with her but was denied.  He feels that if he had been afforded the time to see to his family he would not have gone absent without leave (AWOL).

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 9 November 1971.

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 11 June 1969, he was inducted into the Army of the United States.  He completed basic combat training; however, he never completed advanced individual training (AIT).  

3.  On 10 July 1969, he accepted nonjudicial punishment (NJP) for failing to report to his appointed place of duty.

4.  His records show he was AWOL during the following periods:

* 6 - 18 November 1969
* 19 November 1969 - 25 January 1970
* 7 - 11 February 1970 (apprehended by military authorities)
* 28 February - 15 April 1970 (apprehended by civil authorities)
* 15 June 1970 - 27 September 1971

5.  According to an Army Discharge Review Board (ADRB) review, dated 
29 January 1982, the applicant's charge sheet was not on file.  However, the ADRB stated the applicant submitted a request for discharge under the provision of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  His request was not available for review.

6.  His commander and intermediate commander recommended his request for discharge be approved and that he be issued an Undesirable Discharge Certificate.

7.  On 4 November 1971, the appropriate authority approved his request for discharge for the good of the service and directed he be discharged under the provisions of chapter 10 of Army Regulation 635-200 with an undesirable discharge.

8.  On 9 November 1971, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service with an undesirable discharge.  He completed 9 months and 5 days of net active service that was characterized as under conditions other than honorable.  He had 646 days time lost due to AWOL and confinement.

9.  On 16 February 1982, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined his discharge was proper and equitable.

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative 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 or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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.  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.  In the absence of his charge sheet, it is not possible to determine the extent of his charges or whether additional charges were included.

2.  Although the applicant's separation package is not available, in order for him to be discharged under the provisions of chapter 10 of Army Regulation 635-200, he would have had to have been charged with an offense or offenses for which the authorized punishment included a punitive discharge.  

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is presumed that the type of discharge and the reason for separation were appropriate considering his overall record of service. 


4.  He had more days of time lost (646 days) than he did net active service 
(275 days) and he did not complete AIT.  Therefore, his service is considered unsatisfactory and there is no basis to upgrade his undesirable 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)                                         AR20130008927



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ABCMR Record of Proceedings (cont)                                         AR20130008927



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