IN THE CASE OF:
BOARD DATE: 1 JULY 2010
DOCKET NUMBER: AR20100000301
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 undesirable discharge be upgraded to a general discharge under honorable conditions.
2. The applicant does not submit any additional statements in support of his claim.
3. The applicant provides a copy of discharge orders, dated 11 November 1976, 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 applicants 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 applicants 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 6 October 1975 for a period of three years.
3. Charges were preferred against the applicant for being absent without leave (AWOL) from 13 June to 7 October 1976.
4. The applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. In doing so, he acknowledged he might encounter substantial prejudice in civilian life. He also acknowledged he might be ineligible for many or all Army benefits administered by the Veterans Administration (VA) if an undesirable discharge was issued to him. He submitted statements in his own behalf; however, those statements are not available.
5. The separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with an undesirable discharge. On 11 November 1976, the applicant was discharged accordingly. He had completed 9 months and 15 days of active military service with 114 days of lost time due to being AWOL.
6. There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of this regulation provides that 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 trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.
8. 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 Soldiers 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. The applicants service record does not indicate the request was made under coercion or duress.
2. The applicant's service record shows he was charged with being AWOL 114 days. Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to a general discharge under honorable conditions.
3. The evidence of record does not indicate the actions taken in his case were in error or unjust, therefore, there is no basis for granting the applicant's request for an upgrade of his 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) AR20100000301
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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