IN THE CASE OF:	  

		BOARD DATE:	  17 June 2010

		DOCKET NUMBER:  AR20100000280 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states he had family problems with his wife and he lost his wife and kids due to divorce.  He could not serve to the best of his abilities due to the stress caused by his marriage falling apart.  He contends he was told by an officer from the Judge Advocate General's office he could get a 180 day drop or a hardship discharge.  He is now in need of medical services and is on social security disability.

3.  The applicant provides a 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 enlisted in the Regular Army on 4 January 1974.

3.  A DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) shows the applicant departed absent without leave (AWOL) on 
18 February 1974 and he returned to military control on 7 May 1974.

4.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Qualification Record) reveals he was AWOL for a second time from 5 June 1974 through 
24 June 1974.

5.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  The record does contain a properly-constituted DD Form 214 issued on 19 July 1974 which identifies the authority and reason for his separation.

6.  The applicant's DD Form 214 confirms he was discharged on 19 July 1974, in the rank/grade of private (PV1)/E-1, after completing 3 months and 5 days of creditable active service and accruing 101 days of time lost due to AWOL.  It also shows he was 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 service characterized as under other than honorable conditions.

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

8.  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.

9.  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 contention that his discharge should be upgraded because of the marital problems he faced at the time has been carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.  Additionally, the ABCMR does not upgrade discharges for the sole purpose of making an individual eligible for medical or other benefits.

2.  The available evidence does not include a separation packet containing the specific facts and circumstances surrounding the applicant's final discharge processing.  However, it does include a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's discharge.

3.  The applicant's DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  In connection with such a discharge he was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice (UCMJ).  Procedurally, members against whom court-martial charges are preferred and who desire to voluntarily request discharge are required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.

4.  Absent any evidence of record or independent evidence provided by the applicant to the contrary, it is presumed that the applicant's discharge processing was accomplished in accordance with the applicable regulation and that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  In view of the fact the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in him receiving a punitive discharge, his overall record of undistinguished service did not support the issuance of a general discharge by the separation authority at the time of his discharge and does not support an upgrade of his discharge now.

6.  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)                                         AR20100000280



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ABCMR Record of Proceedings (cont)                                         AR20100000280



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