IN THE CASE OF:	  

		BOARD DATE:	  22 June 2010

		DOCKET NUMBER:  AR20090020879 


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 that his dishonorable discharge be upgraded to an honorable discharge.

2.  The applicant states that he left the Army to go take care of a family emergency and care for three siblings who had been left abandoned and unsupervised.

3.  The applicant provides no additional documents with 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 was inducted in Army of the United States in Dallas, Texas on 11 June 1970.  He was transferred to Fort Polk, Louisiana to undergo basic combat training.

3.  On 20 July 1970, the applicant left his unit in an absent without leave (AWOL) status and he remained absent until 25 August 1970.  On 26 August 1970, nonjudicial punishment was imposed against him for the AWOL offense.  His punishment consisted of a forfeiture of pay.

4.  On 9 September 1970, he went AWOL and remained absent until he was apprehended by civil authorities and returned to military control on 19 November 1970.

5.  On 10 December 1970, he was convicted by a special court-martial of the above period of AWOL.  He was sentenced to confinement at hard labor for
90 days and a forfeiture of pay.

6.  On 9 February 1971, he went AWOL again and remained absent in a desertion status until he was apprehended by civil authorities on 2 September 1972 and returned to military control on 7 September 1972.  Charges for the AWOL offense were preferred against the applicant on 11 September 1972.

7.  On 11 October 1972, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.  He indicated a statement would be submitted in his behalf.  On 12 October 1972, his defense counsel submitted a statement for the applicant indicating that the applicant had four younger siblings who lived with his mother and that he had been helping her with rent and groceries before he came into the Army.  His counsel indicated the applicant had a 10th grade education, he had only 2 good months in the Army, and he had not finished basic training.  Counsel stated the applicant’s inability to adapt to the military and the needs of his family warranted favorable consideration for a discharge.

8.  On 1 November 1972, the appropriate authority (a major general) approved the applicant’s request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

9.  Accordingly, he was discharged on 1 November 1972, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 5 months and 22 days of total active service and he had 699 days of lost time due to being AWOL and in confinement.

10.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  There is no evidence to show the applicant received a dishonorable discharge.

12.  There is also no evidence in the available records to show the applicant attempted to resolve his personal problems through his chain of command by requesting a hardship discharge or any other appropriate actions available to him.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after charges have been preferred, submit a voluntary request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  At that time, an undesirable discharge was normally considered appropriate.

14.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  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, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no evidence of any violations of the applicant’s rights.
2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  

3.  The applicant’s contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to his repeated absences and overall record of undistinguished service.  

4.  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)                                         AR20090020879



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ABCMR Record of Proceedings (cont)                                         AR20090020879



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