IN THE CASE OF:	  

		BOARD DATE:	        9 JUNE 2009

		DOCKET NUMBER:  AR20090003942 


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 changed to a general discharge based on entry level separation.

2.  The applicant states that he believes that his discharge from service should have been an entry level discharge because he was in a training status.  He goes on to state that he believes his discharge should be changed to a general discharge because he was told it would change to honorable status after 6 months.

3.  The applicant provides a letter from the Department of Veterans Affairs (VA), a copy of college transcripts and a diploma, and three third party letters 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 enlisted in the Regular Army with a moral waiver in Los Angeles, California on 20 November 1972, for a period of 3 years, training as a food service specialist and assignment to Fort Lewis, Washington.  He was transferred to Fort Ord, California to undergo his training.

3.  He completed his basic training and remained at Fort Ord for his advanced individual training (AIT).  While in AIT, he went absent without leave (AWOL) on 12 February 1973 for a period of 1 day.  The available records are silent as to any punishment imposed for that offense.

4.  He again went AWOL on 20 February 1973 and remained absent until he was arrested by civil authorities in Pasadena, California on 12 March 1973 and was returned to military control on 30 March 1973 and charges were preferred against him for the AWOL offense.

5.  After consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial.  In his request he stated that he understood that he may be discharged with an undesirable discharge, that he understood the prejudice he may be subjected to as a result of such a discharge, that he understood that he would be deprived of many or all benefits and that he was not subjected to coercion by anyone to submit such a request.  He also elected to submit a statement in his own behalf whereas he asserted that he could no longer cope with the Army anymore and that it was getting worse.  He went on to state that he did not want to serve anymore and that he had been counseled regarding a chapter 13 discharge for disability but he did not want it.  He also stated that he wanted the chapter 10 discharge and he understood and was willing to accept an undesirable discharge. 

6.  It is also noted that the applicant's counsel provided the applicant with extensive counseling in the form of a three-page letter of explanation advising him of his rights and explaining to him the provisions for applying for an upgrade of his discharge and the probability of upgrade by the Army Discharge Review Board and this Board.  His counsel advised him that in all likelihood, an undesirable discharge would remain with him the rest of his life.

7.  The applicant's company commander indicated that he had counseled the applicant on six separate occasions and found no motivation or determination to start anew to become a productive and satisfactory Soldier.  He went on to state that the applicant was pending a Special Court-Martial for AWOL and even after he (the commander) explained the adverse effects of a chapter 10 separation, the applicant remained adamant in pursuing his request for discharge for the good of the service.  The commander recommended that he receive an undesirable discharge.

8.  The battalion and brigade commanders also recommended approval of his request and the appropriate authority (a major general) approved the applicant's request on 23 May 1973.  He directed that he applicant be furnished with an Undesirable Discharge Certificate.

9.  Accordingly, he was discharged with an undesirable discharge, characterized as under other than honorable conditions on 6 June 1973, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served 4 months, and 8 days of total active service and had 77 days of lost time due to AWOL and confinement.   

10.  On 1 July 1977, while confined at the California Correctional Training Facility in Soledad, California, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The ADRB found that his discharge was both proper and equitable and on 14 November 1979, voted unanimously to deny his request.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must indicate that they are submitting the request of their own free will, without coercion from anyone and that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions was then and still is normally considered appropriate.  Additionally, there have never been any provisions for an automatic upgrade of such discharges.

12.  Paragraph 3-7b also 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 courtmartial, was administratively correct and in conformance with applicable regulations.  There were no violations of any of the applicant’s rights.

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 to avoid a punitive discharge and a felony conviction on his records, despite the chain of command's attempts to persuade him to turn himself around.  He was afforded the opportunity to remain on active duty, accept his punishment and complete his training; however, he was adamant that he did not desire to do so.

3. The applicant’s contentions and supporting documents have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to his undistinguished record of service and the nature of his misconduct.  His service simply does not rise to the level of a discharge 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 has 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   XXX_______   ___
               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)                                         AR20090003942





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ABCMR Record of Proceedings (cont)                                         AR20090003942



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