RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 February 2008 DOCKET NUMBER: AR20070014510 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Ms. Catherine C. Mitrano Director Mrs. Nancy L. Amos Analyst The following members, a quorum, were present: Ms. Linda D. Simmons Chairperson Ms. LaVerne M. Douglas Member Mr. John G. Heck Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his discharge under other than honorable conditions be upgraded to a general discharge under honorable conditions. 2. The applicant states, in his 1981 application to the Army Discharge Review Board (ADRB) for reconsideration (which was not considered due to a misunderstanding on the applicant’s part), that due to circumstances that came about in the past few years he wished his discharge to be upgraded. He also stated that when he applied for his chapter 10 discharge he was told it would be automatically reviewed in six months and, with only absent without leave (AWOL) charges, his discharge should be upgraded. He knew he was wrong and accepted the punishment. He stated that he should at least receive the same treatment as those who deserted and left the country and received complete amnesty. 3. The applicant provides his 1981 ADRB application which included his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a Veterans Administration Form 23-22 (Appointment of Veterans Service Organization as Claimant’s Representative); a letter from the Clerk, Superior Court, General Court of Justice, Lincoln County, NC; and a letter of support. 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 was inducted into the Army on 8 April 1968. 3. On 24 October 1968, the applicant was convicted by a special court-martial of three specifications of AWOL, from on or about 1 to on or about 23 July 1968; from on or about 5 to on or about 16 August 1968; and from on or about 5 September to on or about 7 October 1968. He was sentenced to be confined at hard labor for 5 months (suspended for 5 months) and to forfeit $68.00 pay per month for 5 months. Orders dated 18 February 1969 vacated the unexecuted portion of the sentence to confinement at hard labor. 4. The court-martial charge sheet is not available. 5. The applicant’s DA Form 20 (Enlisted Qualification Record) shows he was AWOL from 7 December 1968 through 6 February 1969; in confinement from 7 February through 30 April 1969; AWOL from 1 May through 3 June 1969; and confined on 4 June 1969. 6. On 6 June 1969, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial. He was advised of the effects of an undesirable discharge and that he might be deprived of many or all Army and Veterans Administration benefits. He did not submit a statement in his own behalf. 7. On 28 July 1969, the appropriate authority approved the applicant’s request and directed he receive an Undesirable Discharge. 8. On 5 August 1969, the applicant completed a separation physical and was found qualified for separation. 9. On 8 August 1969, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with an undesirable discharge and a characterization of service of under other than honorable conditions. He had completed 6 months and 23 days of creditable active service and had 278 days of lost time. 10. On 30 June 1971, the ADRB denied the applicant’s request for an upgraded discharge. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 at any time after the charges have been preferred, 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. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. 12. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 13. The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. DISCUSSION AND CONCLUSIONS: 1. The applicant’s 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. There is no indication that the request was made under coercion or duress. 2. The applicant acknowledged that he was wrong and stated that he accepted the punishment. However, although the applicant was given clemency in the form of a suspended sentence to confinement, he departed AWOL again in less than two months after his court-martial imposed that sentence to confinement. 3. Considering the applicant’s numerous instances of AWOL, there is an insufficient basis that would warrant upgrading his discharge. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __lds___ __lmd___ __jgh___ 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. __Linda D. Simmons__ CHAIRPERSON INDEX CASE ID AR20070014510 SUFFIX RECON DATE BOARDED 20080226 TYPE OF DISCHARGE UD DATE OF DISCHARGE 19690808 DISCHARGE AUTHORITY AR 635-200, ch 10 DISCHARGE REASON A70.00 BOARD DECISION DENY REVIEW AUTHORITY Ms. Mitrano ISSUES 1. 110.00 2. 3. 4. 5. 6.