IN THE CASE OF:	  

		BOARD DATE:	  12 November 2014

		DOCKET NUMBER:  AR20140005492 


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 denied a pass to go home and see his newborn child.  He started having trouble with his commander and went absent without leave (AWOL).  While AWOL, he ran into trouble but it was nothing related to his 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 enlisted in the Regular Army on 29 January 1968.
3.  On 21 September 1968, a special court-martial convicted him of being AWOL from on or about 19 April through on or about 9 September 1968.  The resultant sentence included confinement at hard labor for four months. 

4.  His record contains a DA Form 20 (Enlisted Qualification Record).  Item       44 (Time Lost under Section 972, Title 10, U.S. Code and Subsequent to Normal Date Expiration Term of Service) shows he was in an AWOL status for the additional periods of 9 May to 19 May 1969 and 25 May 1969 to 13 July 1970.  

5.  His discharge packet is not available for review; however, his record contains a duly-constituted DD Form 214 that shows he was discharged on 10 August 1970, after completing 9 months and 4 days of net creditable active military service with 647 days of lost time.  This form shows he was issued a separation program number of "246," which denotes he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service.  It also shows his service was characterized as under other than honorable conditions.

6.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

7.  Army Regulation 635-200 sets forth the basic authority for the 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 to an individual who was discharged for the good of the service.

	b.  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.  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.

8.  Army Regulation 15-185 (ABCMR) 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's contentions are noted; however, the evidence of record does not support his request for an upgrade of his discharge.

2.  He was found guilty by special court-martial of being AWOL on at least one occasion.  It appears court-martial charges may have been preferred against him for subsequent instances of being AWOL; however, it also appears he elected to be discharged in lieu of trial by court-martial.

3.  To be discharged under the provisions of Army Regulation 635-200, chapter 10, he would have voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he would have waived his opportunity to appear before a court-martial.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

4.  In the absence of evidence to the contrary, the presumption of administrative regularity must be applied.  As such, even though his records do not contain his discharge packet, it is presumed that his discharge process was accomplished in accordance with applicable regulations.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

5.  His discharge appears appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  The evidence shows he was found guilty by special court-martial for being AWOL on one occasion.  In addition, his records indicate he was AWOL on at least two subsequent occasions.  Therefore, based on his record of indiscipline, his service does not merit an upgrade to his discharge to either 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)                                         AR20140005492





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ABCMR Record of Proceedings (cont)                                         AR20140005492



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