IN THE CASE OF:	 

		BOARD DATE:	  26 January 2010

		DOCKET NUMBER:  AR20090014790 


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, in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge (GD) under honorable conditions.  

2.  The applicant states, in effect, he was young and facing many family issues at the time he served.  He claims he did not use proper channels and went absent without leave (AWOL) instead of requesting a hardship discharge.

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.  On 22 January 1975, at the age of 18, the applicant enlisted in the Regular Army.  Upon completion of training, he was awarded military occupational specialty 11E (Armor Crewman).  His record documents no acts of valor or significant achievement.  

3.  The available evidence show the applicant departed his unit at Fort Hood, Texas in an AWOL status on 1 July 1975 and he remained AWOL until
3 December 1975.  

4.  On 18 December 1975, court-martial charges were preferred against the applicant for the above period of AWOL.

5.  On the same date, the applicant consulted with counsel and requested discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for the good of the service in lieu of trial by court-martial.  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 ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he might 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.

6.  The appropriate authority approved the applicant's request and directed he receive an Undesirable Discharge Certificate and that he be reduced to the lowest enlisted grade.  On 23 February 1976, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He completed a total of 7 months and 26 days of creditable active service with 156 days of time lost due to being AWOL.  

7.  On 12 January 1982, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

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.  

9.  The same chapter and regulation further stated commanders had to 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.

10.  Paragraph 3-7a of the same regulation provides that an HD 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.  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 (HD).  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 chapter 10, Army Regulation 635-200, 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 contends that he was young at the time.  However, the available evidence shows he successfully completed training and was nearly
20 years of age at the time he committed the offense that led to his discharge.   This clearly shows he had the ability to serve honorably had he chose to do so.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who completed their military service obligation.

3.  The applicant's record confirms he voluntarily requested discharge to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge.  His short record of undistinguished service did not support the issuance of an HD or GD at the time and it does not support an upgrade at this late date.  As a result, there is an insufficient evidentiary basis to support granting the requested relief. 

4.  In order to justify correction of a military record, the applicant must show to 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)                                         AR20090014790



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ABCMR Record of Proceedings (cont)                                         AR20090014790



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