IN THE CASE OF:	 

		BOARD DATE:	  27 May 2010

		DOCKET NUMBER:  AR20090020546 


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 his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, he was young and did not understand the impact of this type of discharge.  He has lived too long with this type of discharge hanging over his head and he now regrets ever asking for a discharge for the good of the service.  He was in the stockade at the time and just wanted to get out of jail.  He states he has been a model citizen since leaving the military because he never wanted to be locked up again.  

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 military personnel records show he enlisted in the Regular Army at age 17 with parental consent, on 14 November 1972.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 63A (Mechanic Maintenance Apprentice).

3.  On 6 April 1973, the applicant was assigned to Headquarters Company, Headquarters Command, U.S. Army School/Training Center and Fort Gordon, Fort Gordon, GA as a wheel vehicle mechanic helper.

4.  On 6 November 1973, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for:

   a.  being absent without leave (AWOL) from on or about 4 September to on or about 6 September 1973.

   b.  being AWOL from on or about 19 October 1973 to on or about
6 November 1973.

5.  On 10 December 1973, court-martial charges were preferred against the applicant for:

   a.  being AWOL from on or about 16 November to 3 December 1973.

   b.  willfully damaging a door, of a value of about $81.95, property of the U.S. Government.

6.  The applicant voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

	a.  making the request of his own free will.

   b.  afforded the opportunity to speak with counsel prior to making this request.

   c.  advised he may be furnished an Undesirable Discharge Certificate.



7.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge and he:

   a.  would be deprived of many or all Army benefits;

   b.  may be ineligible for many or all veteran's benefits; and

   c.  may be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  The applicant submitted a statement wherein he stated he:

a.  disliked the Army;

b.  wanted more freedom to go as he pleased; and

c.  knew he would receive an undesirable discharge and lose his benefits, but he wanted to go home and did not care.

9.  On 19 December 1973, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that the applicant be furnished an undesirable discharge.

10.  On 4 January 1974, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service with an undesirable discharge.  He had completed 1 year and 15 days of creditable active service and he had 36 days of lost time.

11.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade his discharge.  On 15 December 1988, the ADRB reviewed and denied the applicant's request for upgrade.

12.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation stated that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time the applicant separated the regulation provided for the issuance of an undesirable discharge.


13.  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.

14.  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 his undesirable discharge should be upgraded to an honorable discharge.  He contends he was young and did not understand the impact of the discharge he was issued.

2.  The applicant’s age at the time of enlistment was considered.  However, many Soldiers were enlisted at a young age and went on to complete their enlistment obligations and receive honorable discharges.  Therefore, the applicant's age is not sufficient to change a properly-issued discharge.

3.  In the statement the applicant submitted with his request for discharge, the applicant stated he knew he would receive an undesirable discharge and lose his benefits.  But, he wanted to go home and he did not care.  Therefore, his contentions about not understanding the impact of his discharge are contradicted by the statements he made at the time of discharge.

4.  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.  

5.  The applicant's statement concerning his post service conduct was considered.  However, good post service conduct alone is not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.


6.  The applicant's records contain no evidence of procedural or other errors that would have jeopardized his rights.  Therefore, in the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined the type of discharge and the reason for separation were appropriate considering all the facts of the case.  

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)                                         AR20090020546



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ABCMR Record of Proceedings (cont)                                         AR20090020546



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