IN THE CASE OF: 

		BOARD DATE:	    17 July 2014

		DOCKET NUMBER:  AR20130020862 


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.

2.  The applicant states he was told by his military attorney that his discharge would be upgraded automatically after 6 months.  He went absent without leave (AWOL) after he was denied a pass to be present at the birth of his first child.  He regrets not following the rules of the military but at the time he had to be there.  Unfortunately, he has no one who can provide him with character references as all his relatives are deceased and he does not socialize with anyone.

3.  The applicant provides his enlistment documents, discharge orders, two DA Forms 20 (Enlisted Qualification Record), and a DA Form 2-1 (Personnel Qualification Record).

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 15 May 1968, the applicant enlisted in the Regular Army and subsequently completed two periods of honorable service:  15 May 1968 to 17 June 1969 and 18 June 1969 to 17 January 1972.  He served in military occupational specialties 11B (Light Weapons Infantryman) and 64C (Truckmaster).

3.  The specific facts and circumstances of his discharge proceedings are not available for review; however, his record shows in Item 21 (Time Lost under Section 972, Title 10, U.S. Code) of his DA Form 2-1 that he had the following lost time:

* 8 March 1974 to 5 November 1974 (245 days AWOL)
* 25 November 1974 to 17 January 1975 (54 days AWOL to dropped from the rolls of his unit (DFR))

4.  On 11 March 1975, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial with an undesirable discharge.  He completed 7 months and 3 days of creditable active service during the period under review.  It further shows he had 299 days of time lost.

5.  There is no indication in his records that he petitioned the Army Discharge Review Board for an upgrade of his discharge. 

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

	a.  Chapter 10 of that regulation provides, in pertinent part, 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, an undesirable discharge was considered appropriate at the time.

	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.

7.  Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR 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 requests an upgrade of his undesirable discharge.

2.  He contends that he had no alternative but to go AWOL in order to be present at the birth of his first child; however, provides no evidence to support his contention.  The evidence of record shows that he had 299 days of lost time due to being AWOL.  It appears that upon his return to military control he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is further presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.

3.  In the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service and that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

4.  There is no evidence of record and the applicant did not provide any evidence that shows his discharge was in error or unjust.  On the contrary, his available record shows he did not met the standards of acceptable conduct and performance of duty for Army personnel.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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)                                         AR20130020862





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ABCMR Record of Proceedings (cont)                                         AR20130020862



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