IN THE CASE OF:	

		BOARD DATE:	1 September 2009    

		DOCKET NUMBER:  AR20090006920 


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.  He also request that his DD Form 214 (Report of Separation from Active Duty), item 15 (Date Entered Active Duty this Period) be corrected to show 19 November 1973.

2.  The applicant states, in effect, that he was young and immature and he went absent without leave (AWOL) to better provide for his family.  His family was very poor and he could better provide for them working as a civilian.  He also states that his DD Form 214 reflects he entered active duty in 1975, when in fact it was in 1973.

3.  The applicant provides a copy of his DD Form 214.

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 23 August 1956 and he was single when he enlisted in the Regular Army (RA), on 19 November 1973, for a period of 3 years and assignment to the 3rd Armored Cavalry Regiment at Fort Bliss, Texas.  He completed his basic training at Fort Dix, New Jersey and he was transferred to Fort Polk, Louisiana to undergo advanced individual training (AIT) as a light weapons infantryman before being transferred to Fort Bliss on 
3 April 1974.  He was advanced to the pay grade of E-3 on 7 August 1974.

3.  The available records show that nonjudicial punishment (NJP) was imposed against the applicant, on 16 December 1974, that resulted in a forfeiture of pay and, on 15 March 1975, NJP was imposed that resulted in a reduction to pay grade E-2.

4.  On 1 April 1975, he went AWOL and remained AWOL in a desertion status until he surrendered to military authorities at Fort Bliss, on 14 May 1975, and was transferred to Fort Sill, Oklahoma.  He immediately departed AWOL again the same day and he remained AWOL in a desertion status until he again was returned to military control, on 22 July 1975, and charges were preferred against him.

5.  On 28 July 1975, 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, chapter 10, in lieu of trial by court-martial.  He indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that 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 that he understood he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further declined to submit a statement or explanation in his own behalf.  His records indicate that he was single with no dependents at the time he submitted his request.

6.  The appropriate authority (a major general) approved his request on 14 August 1975 and directed that he be discharged under other than honorable conditions.

7.  Accordingly, he was issued an undesirable discharge while on excess leave, on 19 August 1975, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 5 months, and 10 days of active service during his current enlistment and he had 111 days of lost time due to being AWOL.  

8.  The DD Form 214 issued to the applicant at the time indicates in item 15 that he entered active duty on 19 November 1975, which is after his date of discharge.

9.  There is no evidence in the available records to show that the applicant 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 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 admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate 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 is normally considered appropriate.  However, an undesirable discharge was appropriate at the time the applicant was separated.

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 (emphasis added), 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 contention that his DD Form 214 should be corrected to reflect he entered active duty on 19 November 1973 instead of 19 November 1975 has been considered and found to have merit.  The applicant enlisted in the RA on 
19 November 1973 and that date should be reflected on his DD Form 214.

2.  The applicant’s contentions concerning the upgrade of his undesirable discharge are not sufficiently mitigating to warrant relief under the circumstances.  

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, the applicant voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.  

4.  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.   Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

5.  The applicant may have been experiencing financial problems at the time; however, there is no evidence to show that he made any attempt to seek assistance from his chain of command to resolve his problems or at least offer an explanation to explain his absence and misconduct. 

6.  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 regarding his discharge that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ____x____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the entry in item 15 of his DD Form 214 and adding the entry 19 November 1973.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an upgrade of his undesirable discharge.  




      _______ _   _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)                                         AR20090006920



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ABCMR Record of Proceedings (cont)                                         AR20090006920



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