BOARD DATE:	 1 July 2010 

		DOCKET NUMBER:  AR20090021401 


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 discharge be upgraded to general.

2.  The applicant states he was young and did not know he was messing up.

3.  The applicant provides no additional 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.  On 28 December 1973, at age 17, the applicant enlisted in the Regular Army for 3 years.  He completed his basic combat training (BCT) at Fort Polk, Louisiana.  

3.  The applicant went absent without leave (AWOL) on 11 March 1974 from Company C, 3d Battalion, Infantry Training Brigade (Provisional), Fort Polk, Louisiana and was dropped from the rolls on 9 April 1974 while in a trainee status.  He was not awarded a military occupational specialty.

4.  On 9 May 1974, the applicant was apprehended by civilian authorities in Pine Bluff, Arkansas and held in the city jail.  He was returned to military control on 
15 May 1974 at Fort Sill, Oklahoma.

5.  The DD Form 458 (Charge Sheet) shows the applicant was charged with being AWOL from 11 March to 9 May 1974.

6.  On 23 May 1974, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal 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 acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice (UCMJ), and that he could receive an under other than honorable conditions (UOTHC) discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.  

7.  In his request for discharge, the applicant acknowledged he understood that by requesting a discharge he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 

8.  The applicant furnished a personal statement as part of his request for discharge which stated he entered the Army to get a better education and a decent job.  The Army is not what he thought it would be.  They gave him the wrong MOS and he did not receive a full months' pay.  Further, he wanted to be discharged in order to return to his old job.

9.  On 6 June 1974, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 10 June 1974, the applicant was discharged accordingly.  He had completed a total of 2 months and 13 days of creditable active military service and accrued 90 days of time lost due to AWOL and confinement.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, a member who has committed an offense or offenses for which the authorized punishment includes 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

12.  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 was 17 years of age and he had satisfactorily completed BCT when he went AWOL.  Notwithstanding the applicant's assertion that he was young and that he was not aware of the consequences of his actions the available evidence does not show he had any mitigating circumstances for going AWOL.  In fact, the statement that he provided at the time of his discharge shows he indicated he wanted to be discharged because the Army was not what he thought it would be and he wanted to return to his old job.

2.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel he voluntarily requested a discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.  

3.  In order to justify correction of a military record the applicant must show 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.

4.  In view of the foregoing, the applicant's request should be denied.


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)                                         AR20090021401



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ABCMR Record of Proceedings (cont)                                         AR20090021401



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