IN THE CASE OF:	  

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20100007233 


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 an honorable discharge.

2.  The applicant states he believes his discharge should have been honorable.  He contends that he was wrongly accused of a crime and then released after 7 months.  The Army claimed he was absent without leave (AWOL) and discharged him.

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 14 March 1968.  He completed initial entry training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 18 November 1968, a special court-martial (SPCM) found him guilty of being AWOL for the period 10-28 September 1968.  On 6 April 1970, he was again found guilty by an SPCM of being AWOL from 3 November 1969 to 22 February 1970.

4.  On 7 August 1970, he accepted nonjudicial punishment for being AWOL during the period 1-27 June 1970.

5.  On 4 May 1971, court-martial charges were preferred against him for three specifications of AWOL.

6.  On 10 May 1971 after consulting with counsel, he requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

7.  The separation authority approved his request for discharge and directed he be issued an undesirable discharge.  On 8 November 1972, he was discharged with his service characterized as under conditions other than honorable.  He completed 1 year, 10 months, and 21 days of creditable active military service and had accrued 493 days of lost time.

8.  The Army Discharge Review Board denied his requests for a discharge upgrade on 19 March 1973, 23 September 1977, and 14 March 1980.

9.  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.

10.  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.

11.  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 request for an upgrade of his undesirable discharge to honorable has been carefully reviewed.

2.  The evidence of record confirms he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.   The record shows that after consulting with defense counsel, he voluntarily requested discharge from the Army to avoid trial by court-martial.  His 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.  There is no indication the request was made under coercion or duress.

3.  The applicant's record of indiscipline includes nonjudicial punishment, convictions by two SPCM's, and 493 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

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)                                         AR20100007233



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ABCMR Record of Proceedings (cont)                                         AR20100007233



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