IN THE CASE OF: BOARD DATE: 25 August 2009 DOCKET NUMBER: AR20090007224 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 that his undesirable discharge be upgraded to a general discharge. 2. The applicant states, in effect, that when he joined the Army the recruiter told him he would attend basic training and be placed in the Army Reserve. He refused to go to Vietnam, he was absent without leave (AWOL) for 2 years, he spent 10 months in the stockade at Fort Dix, and he was told his discharge would be upgraded in the coming years. 3. The applicant provides no additional documentary evidence in support of his DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and two DD Forms 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552). 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 24 March 1967 for a period of 3 years. He successfully completed basic combat training, advanced individual training, and airborne training. He was awarded military occupational specialty 11B (light weapons infantryman). 3. On 26 October 1967 the applicant went AWOL and returned to military control on 26 October 1969. He was placed in confinement on 27 October 1969. On 13 November 1969, charges were preferred against the applicant for the AWOL period. 4. On 27 April 1970, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10. He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration (currently known as the Department of Veterans Affairs) and that he might be deprived of his rights and benefits as a veteran under both Federal and State law. He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge. He elected not to submit a statement in his own behalf. 5. On 12 June 1970, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 6. Accordingly, the applicant was discharged with an undesirable discharge on 24 June 1970 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. He had served a total of 6 months and 11 days of creditable active service with 987 days of lost time due to AWOL and confinement. 7. On 29 March 1978, the Army Discharge Review Board denied the applicant's request for a discharge upgrade. 8. 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. At the time, an undesirable discharge was normally considered appropriate. 9. Army Regulation 635-200, 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 (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate. 10. 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. 11. 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. A discharge upgrade is not automatic. 2. The applicant’s brief record of service included 987 days of lost time. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge. 3. The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations. He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so. 4. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. 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) AR20090007224 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090007224 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1