BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090016918 


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 general, under honorable conditions discharge.

2.  The applicant states, in effect, that he would like his discharge upgraded to clear his record and so his Department of Veterans Affairs (VA) status will reflect his service.

3.  The applicant provides no documentary evidence 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 28 May 1971 for a period of 3 years.  He successfully completed basic combat training.
3.  On 12 August 1971, while in advanced individual training, nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against the applicant for being absent without leave (AWOL) from 8 August 1971 to 10 August 1971.  His punishment consisted of a verbal reprimand, reduction to E-1, a forfeiture of pay, and restriction and extra duty.

4.  The applicant was AWOL on 21 August 1971 and returned to military control on 25 August 1971.  He was AWOL on 30 August 1971 and returned to military control on 27 September 1971.  He was AWOL again on 29 September 1971 and returned to military control on 19 October 1971.  On 28 October 1971, charges were preferred against the applicant for the AWOL periods.

5.  On 1 November 1971, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, 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 encounter substantial prejudice in civilian life because of an undesirable discharge.  

6.  The applicant elected to submit a statement in his own behalf.  In summary, he stated that he had received seven Article 15's for failures to repair, that he did not feel he would ever be able to adjust to military life, and that he would go AWOL again.

7.  On 8 November 1971, the separation authority approved the applicant's request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

8.  The applicant was discharged with an undesirable discharge on 10 November 1971 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 4 months and 15 days of creditable active service with 29 days of lost time.



9.  On 4 October 1982, the Army Discharge Review Board (ADRB) denied his request for a discharge upgrade.

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 3-7b, 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, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  

2.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

3.  The applicant's brief record of service included at least one nonjudicial punishment (and possibly six others, according to statement the applicant made with his request for discharge) and 29 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general, under honorable conditions 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)                                         AR20090016918



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ABCMR Record of Proceedings (cont)                                         AR20090016918



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