RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 February 2008 DOCKET NUMBER: AR20070015351 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 undesirable discharge be upgraded. 2. The applicant states that he was young and immature when he was in the Army. He realizes he made a big mistake. He served 18 months in Germany and did pretty good. The highest rank he made was E-4. He is asking for a little slack. 3. The applicant provides a Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim). 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 born on 22 June 1950. He enlisted in the Regular Army on 31 January 1969. He completed basic combat training and advanced individual training and was awarded military occupational specialty 11E (Armor Crewman). 3. On 21 August 1969, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from on or about 20 April 1969 to on or about 12 August 1969. He was sentenced to confinement at hard labor for 6 months (suspended for 6 months), and to forfeit $75.00 pay per month for 6 months. 4. The applicant was assigned to Germany on or about 3 February 1970. He was promoted to Specialist Four, E-4 on 8 June 1970. 5. On 25 May 1971, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to go to his appointed place of duty. 6. On 2 February 1972, court-martial charges were preferred against the applicant charging him with being AWOL from on or about 1 July 1971 to on or about 22 December 1971 and from on or about 26 December 1971 to on or about 10 January 1972. 7. On 13 January 1972, the applicant completed a mental status evaluation. He was found to be able to distinguish right from wrong and to adhere to the right and to have the mental capacity to understand and participate in board proceedings. 8. On an unknown date, 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. He was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits. He submitted a statement in his own behalf. Counsel, on behalf of the applicant, stated that the applicant received word that his mother was having financial difficulties and was having health problems that often prevented her from working. The applicant went home to work as a fry cook and as a construction worker to aid his family. 9. On 15 February 1972, the appropriate authority approved the applicant’s request and directed he be issued an undesirable discharge certificate. 10. On 25 February 1972, 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 2 years, 1 month, and 19 days of creditable active service and had 343 days of lost time. 11. On 5 November 1981, the Army Discharge Review Board denied the applicant’s request to upgrade his discharge. 12. 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. 13. 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. 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, 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 was over 18 years old when he enlisted and he successfully completed basic combat training and advanced individual training. He had a long period of AWOL before he went to Germany for which he received a court-martial. He therefore knew there would be consequences for similar misconduct. The applicant’s characterization of service appears to be commensurate with the offenses for which he was charged and his overall record of service. 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 AR20070015351 SUFFIX RECON DATE BOARDED 20080226 TYPE OF DISCHARGE UD DATE OF DISCHARGE 19720225 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.