IN THE CASE OF:	  

		BOARD DATE:	  24 September 2009

		DOCKET NUMBER:  AR20090007179 


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 discharge be upgraded.

2.  The applicant states, in effect, that there is no error in his record.  He states that he had a lot of problems, he was young, and he made several bad decisions at that time.  He adds that at the time of discharge he was told that after 6 months he would be able to have his discharge changed.

3.  The applicant provides a self-authored statement in support of this application.

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 (RA), at age 18, on 8 September 1969, and upon completion of initial entry training he was awarded military occupational specialty 11E (Armor Crewman).

3.  On 19 April 1971, charges were preferred against the applicant for being absent without leave (AWOL) on the following dates:

	a.  from 19 January 1970 to 21 February 1970;

	b.  from 25 February 1970 to 3 August 1970;

	c.  from 10 September 1970 to 28 January 1971; and

	d.  from 29 January 1971 to 12 April 1971.

4.  The applicant consulted with counsel and requested 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 he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate, that he would be deprived of many or all Army benefits, that he might be deprived of 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 law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to make a statement in his own behalf.

5.  On 7 June 1971, the appropriate authority approved the applicant's request and directed that he receive an Undesirable Discharge Certificate.  Accordingly, on 11 June 1971, the applicant was discharged.  He completed 6 months and 
14 days of creditable active service with 448 days of lost time due to being AWOL and in confinement.

6.  The applicant provided a self-authored statement which essentially indicates that his problems and misconduct were a result of a very unfortunate childhood.

7.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.

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.

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.  There is no indication that the request was made under coercion or duress.

2.  The applicant enlisted in the RA at age 18, and he was no younger than other Soldiers who successfully completed their military obligations.  While the applicant's childhood events are unfortunate, he successfully completed initial entry training which demonstrates he was capable of serving.  

3.  The applicant's record of indiscipline includes 448 days of lost time.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge or an honorable discharge.

4.  The Army does not have, nor has it ever had, a policy for the automatic upgrade of a discharge.  A discharge may be upgraded if it is determined the discharge was improper or inequitable.

5.  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.



      _______ _   _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)                                         AR20090007179



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ABCMR Record of Proceedings (cont)                                         AR20090007179



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