BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090011285 


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 upgraded to a general under honorable conditions discharge.

2.  The applicant states he went absent without leave (AWOL) for what he thought would be a few days to attend his sister's wedding.  He was in the company of a fellow platoon member who, unknown to him, had stolen money orders which he used all or in part to pay him $600.00 he owed him.  He continues that he was arrested days after he deposited the money orders and held 8 months during the investigation.  He argues that he was completely cleared of all charges but by that time he was considered AWOL for 8 1/2 months.  He was then told that he would either be sent to the Fort Leavenworth prison or he had to accept the undesirable discharge.  The applicant concludes that he strongly believes he was coerced into a poor decision but was too young and afraid to know better.

3.  The applicant provides a DD Form 214 (Report of Separation from Active Duty) 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, at the age of 18 on 26 July 1972.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  A DA Form 268 (Report for Suspension of Favorable Personnel Action), dated 12 April 1973, shows the applicant was pending disciplinary action for alleged possession of marijuana.

4.  A DA Form 268, dated 26 April 1973, shows the applicant was pending elimination proceedings for unfitness/unsuitability.

5.  A DA Form 268, dated, 14 June 1973, shows the applicant departed AWOL on 11 June 1973.

6.  A Federal Bureau of Investigation statement, dated 19 September 1973, shows the applicant had been placed in civilian confinement.

7.  On 28 January 1974, charges were preferred against the applicant for being AWOL from 11 June 1973 to 25 January 1974.

8.  On 30 January 1974, 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 acknowledged in his request that he understood he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He acknowledged that he understood that he would be deprived of many or all Army benefits, that he would be deprived of many or all benefits administered by the Veterans Administration, and that he would be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

9.  On 8 February 1974, the appropriate authority approved the applicant's request and directed he receive an Undesirable Discharge Certificate.  On 14 February 1974, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial.  He completed 11 months and 6 days of creditable active service with 228 days of time lost.

10.  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.

11.  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, the 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.

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

2.  The applicant's record of indiscipline includes 228 days of lost time.  He was also pending disciplinary action for possession of marijuana.  Based on this record of indiscipline, his service clearly did 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.

3.  The applicant contends that he was too young and afraid to know better; however, age is not a sufficiently mitigating factor.  The applicant completed basic combat and advanced individual training and there is no evidence that indicates he was any less mature than other Soldiers of the same age who completed their terms of military service.

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.



      ___________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)                                         AR20090011285



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ABCMR Record of Proceedings (cont)                                         AR20090011285



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