IN THE CASE OF: BOARD DATE: 13 January 2011 DOCKET NUMBER: AR20100017303 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 his commander told him he only needed to request a discharge and that he was not appointed any legal counsel at the time. He adds that he is disabled now and believes he deserves an upgraded discharge. 3. The applicant provides 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's military records show he enlisted in the Regular Army on 25 March 1969. He completed initial entry training, was awarded the military occupational specialty of petroleum storage specialist, and he was promoted to pay grade E-4. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the period 16 January to 1 February 1971. 4. On 14 July 1971, he was charged with three specifications of failing to go at the time prescribed to his appointed place of duty and willfully damaging a washing machine by beating it with a claw hammer. 5. On 27 July 1971, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial. He acknowledged that he was not subjected to coercion with respect to his request for discharge and that he had been advised of the implications attached to his request. He further acknowledged he had been advised of the basis for his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, of the effects of such a discharge, and of the rights available to him. 6. On 28 July 1971, he consulted with counsel and was advised of his rights. He acknowledged he understood if his discharge request was approved, he might be discharged under conditions other than honorable. He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws. He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of this discharge. He submitted a statement on his own behalf in which he indicated he did not want to remain in the military. 7. On 17 September 1971, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed that he be issued an Undesirable Discharge Certificate. 8. On 24 September 1971, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial. The DD Form 214 he was issued at that time shows he had completed a total of 2 years, 5 months, and 14 days of active service with 16 days of lost time. 9. There is no indication the applicant 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 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. At the time of the applicant's separation, an Undesirable Discharge Certificate was appropriate. 11. 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL. He was also charged with three specifications of failing to go at the time prescribed to his appointed place of duty and for willfully damaging a washing machine by beating it with a claw hammer. 2. He voluntarily requested discharge in lieu of a trial by court-martial. The evidence of record shows he consulted with counsel prior to making his request. His records show he had 16 days of lost time due to being AWOL. Based on the applicant's offenses, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, he is not entitled to either a general or an honorable discharge. 3. In view of the foregoing, there is no basis for granting the applicant relief. 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) AR20100017303 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100017303 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1