IN THE CASE OF: 

		BOARD DATE: 29 September 2015

		DOCKET NUMBER:  AR20150002963 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states the Army failed to keep the terms of his enlistment contract.  He enlisted under the “Buddy System,” but was he was separated from his buddy.  He was only 17 years old and had never been away from home.  He did not understand the circumstances at the time and that’s why he requested to get out with the undesirable discharge.

3.  The applicant did not provide any supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records 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, and 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 1 June 1972.  He held military occupational specialty 11B (Infantryman).  His DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows he enlisted for “Regular Army Enlistment Option.”  There is no reference to the “Buddy System.”  His date of birth is shown as 8 July 1954.

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in Korea from 18 November 1972 through 22 December 1973.  The highest rank he attained was private/E-2.  Item 44 (Time Lost) shows three entries totaling 
303 days.

4.  On 19 March 1975, charges were preferred against the applicant for being absent without leave (AWOL) from 6 May 1974 to 10 February 1975.  He was 
19 years old when he went AWOL.

5.  He consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he understood the elements of the charges against him and admitted he was guilty of at least one of the offenses which authorized a punitive discharge.  He also acknowledged he understood he might receive a discharge under conditions other than honorable, which would deprive him of many or all Army benefits, and he might be ineligible for veterans' benefits administered by the Veterans Administration.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued an under other than honorable discharge.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will.  He submitted a statement in his own behalf in which he related that he went AWOL because he had a problem at home.  His mother was sick, under a doctor’s care, and unable to provide for herself and the applicant’s younger sister.  His father had left and was not sending any money to his mother.  He went home and got a job to support his mother and younger sister.  He realized he was doing wrong and turned himself in to the military police.

6.  His chain of command recommended approval of the separation with issuance of an Undesirable Discharge Certificate.

7.  The separation authority approved the discharge request and directed issuance of an Undesirable Discharge Certificate.

8.  On 18 April 1975, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He had completed 2 years and 22 days of creditable active service with 302 days of time lost.
9.  There is no available record showing he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 provides 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 is normally considered appropriate.

	b.  Paragraph 3-7a states 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 states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided no evidence to support his request for an upgrade of his undesirable discharge.  He may have been 17 years old when he enlisted, but he was nearly 20 years old when he went AWOL.

2.  His request for a chapter 10 discharge, even after appropriate and proper consultation with legal counsel, tends to show he wished to avoid the court-martial and the punitive discharge he might have received.  His service was appropriately characterized based on the nature of his offenses and the circumstances of his separation and does not warrant an upgrade 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 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)                                         AR20100027085



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ABCMR Record of Proceedings (cont)                                         AR20150002963



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