IN THE CASE OF:	 

		BOARD DATE:	  15 April 2010

		DOCKET NUMBER:  AR20090016360 


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.

2.  The applicant states he was young and didn’t realize what was going on.  He states if he could go back he would do his time.  He says he needs his discharge upgraded to receive Department of Veterans Affairs (VA) benefits.

3.  The applicant provides no additional 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 was less than one month shy of turning 20 when he was inducted into the Army of the United States on 26 February 1968.  Prior to being inducted, he received a waiver for two counts of careless driving and one count of driving without a license at the age of 18.

3.  He was convicted by special court-martial in September 1968 for being absent without leave (AWOL) between 11 May and 29 August 1968.  A second special court-marital convicted him in May 1969 for being AWOL between 29 October 1968 and 20 April 1969.  As a result of his second court-martial conviction he was confined at hard labor at Fort Riley, KS.

4.  On 23 July 1969 the applicant was released from confinement and assigned to Fort Leonard Wood, MO for training as a combat engineer.  The applicant never reported to Fort Leonard Wood and on 25 July 1969 he was again reported as AWOL.  He returned to military control on 8 June 1970 and he was assigned to the special processing detachment at Fort Riley.

5.  On 9 July 1970 he departed AWOL again.  He was dropped from the rolls (DFR) of the Army on 16 July 1970 and on 8 November 1970 he returned to military control at Fort Carson, CO.  On 5 January 1971 he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of being trial by court-martial.  He acknowledged that he understood he could receive an undesirable discharge as a result.  He also indicated he understood that such a discharge could result in the denial of veterans benefits under Federal and state laws.

6.  The appropriate authority approved the applicant's request and on
2 February 1971 he was discharged accordingly.  His received an Undesirable Discharge Certificate and his service was characterized as under other than honorable conditions.  He completed 8 months and 14 days of creditable active service and he had more than 800 days of lost time due to AWOL and confinement.

7.  The service member’s record doesn’t contain any evidence he applied to the Army Discharge Review Board to have his discharge upgraded.

8.  References:

	a.  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 VA 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.  

	b.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 inappropriate.

	c.  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 undesirable discharge was appropriate considering the basis for the separation.  His records show he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  There is no evidence indicating his separation was not accomplished in compliance with regulatory guidance and no indication of any procedural errors that would have jeopardized his rights.

2.  He was nearly 20 years old when he was inducted into the Army.  He has provided no evidence substantiating his claim he was young and unaware of what was going on.  His desire to obtain VA benefits is understandable.  However, his claim of his young age at the time of induction or his desire to obtain VA benefits are not sufficiently mitigating to justify upgrading his discharge.



3.  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)                                         AR20090016360



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ABCMR Record of Proceedings (cont)                                         AR20090016360



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