IN THE CASE OF:	

		BOARD DATE:	  11 March 2010 

		DOCKET NUMBER:  AR20090014985 


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, upgrade of his undesirable discharge to a fully honorable discharge.

2.  The applicant states that he was young at the time and got into minor trouble. He also states when he arrived at Fort Hood, TX, a sergeant raped him which made him run away.

3.  The applicant did not provide any additional documentary evidence in support of his request.

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's record shows he was born on 25 February 1958 and enlisted in the Regular Army (RA) on 17 April 1975 at the age of 17.  He held military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank he attained during his military service was private (PV2)/E-2.

3.  On 27 September 1975, he failed to report to his gaining unit in Europe and his commander reported him in an absent without leave (AWOL) status.  His commander then directed his attachment to Fort Hood on 2 October 1975.

4.  On 15 November 1975, he departed his Fort Hood unit in an AWOL status.  His commander subsequently dropped him from the rolls (DFR) of the Army on the same day.  Civilian authorities ultimately apprehended him in Shreveport, LA, on 29 December 1975 and returned him to military control at Fort Gordon, GA on 5 January 1976.

5.  On 14 January 1976, at Fort Gordon, the court-martial convening authority preferred court-martial charges against him for two specifications of being AWOL from on or about 27 September 1975 to on or about 2 October 1975 and from on or about 15 November 1975 to on or about 28 December 1975.

6.  The applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.

7.  In his request for discharge, he indicated he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person and although the Army provided him with legal advice, the decision for the request for discharge was his.  He also indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense.  He further acknowledged he understood that if his discharge request was approved, he could be discharged under other than honorable conditions and furnished an under other than honorable conditions discharge, that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA) and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He further elected not to submit a statement in his own behalf.
8.  On 23 and 26 January 1976, his immediate and intermediate commanders recommended approval of the discharge with the issuance of an Undesirable Discharge Certificate.

9.  On 3 February 1976, the separation authority approved his request for discharge for the good of the service in accordance with Army Regulation
635-200, chapter 10, and directed he receive an Undesirable Discharge Certificate and be reduced the lowest enlisted grade.  On 27 February 1976, he was accordingly discharged.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged for conduct triable by court-martial with a character of service of under other than honorable conditions and issued a DD Form 258A (Undesirable Discharge Certificate).  It further confirms he completed 8 months and 15 days of creditable active military service and he had 56 days of lost time.

10.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitation.

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, 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 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  It 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.

13.  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 contends that his discharge should be upgraded.

2.  His records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  Subsequent to consulting legal counsel, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  There is no evidence in his records that he was raped, was hospitalized for rape, or addressed this issue with his chain of command or other support channels such as the chaplain.  Furthermore, he was nearly 18 years of age when he went AWOL.  There is no evidence that he was any less mature than other Soldiers of the same age who successfully and honorably completed their service obligations without having to go AWOL.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

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)                                         AR20090014985



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ABCMR Record of Proceedings (cont)                                         AR20090014985



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