IN THE CASE OF:	

		BOARD DATE:	20 January 2010  

		DOCKET NUMBER:  AR20090014443 


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 upgrade of his undesirable discharge.

2.  The applicant states he was not given a trial because he was told his best recourse would be to take a “stockade sentence” and discharge in lieu of a trial.  He alleges that he did not understand the way the system worked and he did not have a lawyer to help him.  He thought he was doing the right thing.  The applicant continues by stating he was scared, he was absent without leave (AWOL) to see his family for some kind of advice, and his discharge came in the mail before he could return [to his unit].

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) in support of his 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) on 22 July 1971 for a period of 3 years.  He completed training as a recovery specialist and the highest rank/grade attained was specialist (SPC)/E-4.

3.  On four separate occasions between 29 February 1972 and June 1974, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for the following offenses:  AWOL (15 December 1971 to 21 February 1972); absent from his appointed place of duty; disobeying a lawful order; AWOL (10 June 1974 to 12 June 1974); and failing to go to at the time prescribed to his appointed place of duty.

4.  On 31 July 1974, the applicant was charged with being AWOL from 16 July 1974 to 29 July 1974; disobeying a lawful command from a first lieutenant (two specifications); and disobeying a lawful order from a sergeant.

5.  On 31 July 1974, the applicant consulted with legal counsel and he voluntarily requested discharge for the good of the service - in lieu of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration (VA) if an undesirable discharge was issued.  He did not submit statements in his own behalf.

6.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date ETS) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows he was AWOL from 12 August 1974 to 15 August 1974 among other periods of time lost.  There is no record of nonjudicial punishment for this period of AWOL.

7.  On 9 August 1974, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with the issuance of an undesirable discharge.

8.  Accordingly, the applicant was discharged from active duty on 15 August 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial with an undesirable discharge.  He had completed 2 years, 9 months, and 28 days of active military service with 88 days of lost time due to AWOL.

9.  On 17 September 1986, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge.

10.  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.

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 statements were noted.  However, at the time he acknowledged that he consulted with military counsel during the chapter 10 discharge process.

2.  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.


3.  The applicant's record of service shows he received four Article 15s and he was AWOL for a total of 88 days.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This lost time also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or honorable discharge.

4.  There is no evidence of record which indicates the actions taken in his case were in error or unjust; therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20090014443



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ABCMR Record of Proceedings (cont)                                         AR20090014443



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