IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20090021689 


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 an upgrade of his undesirable discharge.

2.  The applicant states, in effect, that he went absent without leave (AWOL) due to a family hardship.  His mother had two heart attacks and there was no one to take care of her.  He requested a hardship discharge but it was not granted.  His family was poor and they depended on him.  He concludes by stating he had every intention of serving honorably which he feels he did.

3.  The applicant provides a self authored statement in support of this 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 into the Army of the United States on 27 July 1970.  

3.  The applicant’s record contains a copy of Headquarters, Presidio of San Francisco, CA, Special Court-Martial (SPCM) Order Number 266, dated 15 May 1968, which shows he was charged with one specification of violating Article 86, Uniform Code of Military Justice (UCMJ), by absenting himself from his unit without authority from 3 January to 28 February 1968.  The applicant entered a plea of guilty and was found guilty.

4.  The applicant’s record contains a copy of Headquarters, Troop Command, Fort Ord, CA, Special Court-Martial (SPCM) Order Number 2789, dated 
21 October 1968, which shows he was charged with one specification of violating Article 86, UCMJ, by absenting himself from his unit without authority from 18 June to 20 September 1968.  The applicant entered a plea of guilty and was found guilty.

5.  The applicant's Charge Sheet, dated 16 March 1971, shows he was charged with being AWOL from 2 January 1969 to 13 March 1971.

6.  On 27 May 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

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

8.  On 28 May 1971, the applicant's company commander recommended approval with an undesirable discharge.  On 14 June and 26 June 1971, the applicant's intermediate commanders recommended separation with an undesirable discharge.


9.  On 2 July 1971, the separation authority approved the applicant's request and directed that he be separated under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial, with an undesirable discharge.  On 2 July 1971, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 1 year and 28 days of creditable active service with 1,022 days of lost time.

10.  On 28 March 1980, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

11.  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, of the loss of VA benefits, and of the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

12.  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.

13.  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 voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial.  He acknowledged he understood that he could be ineligible for many or all benefits administered by the VA and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication that the request was made under coercion or duress.

2.  The applicant's contention that his mother was ill is noted; however, it does not serve as a basis to warrant upgrading the character of his service.  The applicant had numerous avenues he could have used to help resolve his personal problems to include the chaplain and there is no evidence that he utilized them.

3.  The applicant’s record of indiscipline includes two SPCMs and 1,022 days of AWOL.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge under honorable conditions or an honorable 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)                                         AR20090021689



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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