IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100007114 


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, in effect, that his undesirable discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states, in effect, that the justification for his request is he was too emotionally unfit to serve.   

3.  The applicant provides no additional documentary evidence in support of this case.

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 18 March 1969 for a period of 2 years.  He completed the required training and he was awarded military occupational specialty 64A (Light Vehicle Driver).  The highest grade he attained was pay grade E-2.

3.  The applicant went absent without leave (AWOL) on 14 June 1969 and he was apprehended and returned to military control on 28 August 1974 at Fort Leonard Woods, Missouri. 

4.  On 9 September 1974, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial.  In his request for discharge the applicant indicated he had consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge and of the issuance of an Undesirable Discharge Certificate, and of the procedures and rights that were available to him.  He further acknowledged that 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected to make a statement in his own behalf; however, the statement is not in the available record records. 

5.  On 12 September 1974, the applicant's company commander recommended separation with an undesirable discharge.  On 12 September 1974, the intermediate commander also recommended separation with an undesirable discharge.

6.  On 16 September 1974, the separation authority approved the applicant's request for discharge and directed that the applicant be furnished an undesirable discharge.  On 18 September 1974, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 3 months and 26 days of creditable active military service and that he accrued 1,922 days of time lost due to being AWOL and in confinement.  However, 1,281 days were lost subsequent to his normal expiration term of service date.

7.  On 25 August 1978, the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge.

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 undesirable discharge should be upgraded because he was too emotionally unfit to serve was carefully considered.

2.  The applicant was charged with being AWOL from 14 June 1969 through      28 August 1974.  He then voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 635-200 for the good of the service to avoid trial by court-martial.

3.  The available evidence also shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

4.  Based on the applicant's record of indiscipline, which includes 1,922 days of lost time, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His lost time renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

5.  The available evidence does not show the applicant was suffering from any emotional unfitting condition at the time of his discharge.  Therefore, the type of discharge directed was appropriate considering all the facts of the case.


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)                                         AR20100007114



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ABCMR Record of Proceedings (cont)                                         AR20100007114



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