IN THE CASE OF: BOARD DATE: 26 April 2011 DOCKET NUMBER: AR20100026435 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, in effect, that his discharge under other than honorable conditions be upgraded to a more favorable discharge. 2. The applicant states that certain sentences were lined out on the request for discharge and he was requested/demanded to initial by them and sign it. He goes on to state he had no time to read the request or to request counsel. He had no legal representation when the discharge occurred and he was not advised of his legal rights. 3. The applicant provides the front page of his request for 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 enlisted in the Illinois Army National Guard on 27 March 1975 for a period of 6 years. He indicated he was single at the time of his enlistment. 3. He was ordered to initial active duty for training on 17 July 1975 and was transferred to Fort Polk, Louisiana, for one-station unit training. 4. On 17 November 1975, he was absent without leave (AWOL) and remained absent in desertion until he was returned to military control at Fort Carson, Colorado, on 12 July 1976. On 26 July 1976, nonjudicial punishment was imposed against him for the absence. 5. On 1 August 1976, he again was AWOL and remained absent in desertion until he was returned to military control at Fort Carson on 5 March 1977 and charges were preferred against him for the absence. 6. On 17 March 1977 after consulting with defense 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, in lieu of trial by court-martial. In his request he indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request. He also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge. He also elected to submit a handwritten statement in his own behalf wherein he stated his commander in basic training would not give him a discharge and he desired a discharge as soon as possible. He also stated the Army had done nothing for him and joining the National Guard was something he wished he had never done because he had a 4-week old son that he had not seen and his family, wife, and son missed him. He further stated the Army was not the right place for him. His defense counsel signed the request for discharge attesting that the applicant had been advised of the effects of a discharge under other than honorable conditions and all of the applicant's rights had been explained to him. The applicant was also provided a fact sheet explaining his rights and the effects of such a discharge which he acknowledged receipt of by his signature. 7. The appropriate authority approved his request for discharge on 25 March 1977 and directed that he be discharged under other than honorable conditions. 8. Accordingly, he was discharged under other than honorable conditions on 11 April 1977 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He completed 7 months and 6 days of active service and had 413 days of lost time due to AWOL. He was still in a trainee status. 9. There is no evidence in the available records to show he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides 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 at any time after charges have been preferred. A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive. A discharge under other than honorable conditions is normally considered 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'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. Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances. 2. After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record. In doing so he admitted guilt to the charges against him. 3. The applicant's contentions have been noted and are found to lack merit. The evidence of record clearly shows he was represented by defense counsel and that all of his rights were explained to him as evidenced by his signature in more than one instance during his application. Accordingly, his contentions are not sufficiently mitigating to warrant relief under the circumstances, especially given the length of his absence during such a short period of service. His service simply does not rise to the level of honorable or under honorable conditions. 4. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant failed to submit evidence that would satisfy this requirement. 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) AR20100026435 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100026435 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1