IN THE CASE OF:	  

		BOARD DATE:	    22 July 2010

		DOCKET NUMBER:  AR20100007391 


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 discharge under other than honorable conditions be upgraded to a more favorable discharge.

2.  The applicant states that he desires to have his discharge upgraded so that he can obtain veterans' benefits.  He goes on to state that he was 17 years of age when he joined the Army and he made some stupid mistakes and made wrong decisions.  However, that was 30 years ago and he is now asking for forgiveness.

3.  The applicant provides no additional documents with 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 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 born on 2 November 1960 and enlisted in the U.S. Army Reserve (USAR) in Baltimore, Maryland, on 17 February 1978 for a period of 6 years and assignment to a USAR unit at Fort Meade, Maryland.

3.  He was ordered to initial active duty for training on 10 March 1978 and was transferred to Fort Jackson, South Carolina, to undergo basic training.  He completed basic training and was transferred to Fort Eustis, Virginia, to undergo advanced individual training as an aircraft structural repairer.

4.  On 19 July 1978, nonjudicial punishment was imposed against the applicant for failure to go to his place of duty and failure to obey a lawful order.  His punishment consisted of a forfeiture of pay (suspended), extra duty, and restriction.

5.  He completed his training and on 16 September 1978 he was honorably released from active duty and was returned to his USAR unit.

6.  On 18 January 1979, the applicant's commander submitted a request for active duty orders that ordered the applicant to active duty because he had eight unexcused absences.  Orders were published on 9 March 1979 ordering the applicant to active duty on 23 April 1979 for a period of 17 months and 23 days.  The applicant was ordered to report to Fort Dix, New Jersey, for assignment to Alaska.  He failed to report as ordered and remained absent without leave until he reported to Fort Dix on 7 May 1979.  The record is silent as to any punishment imposed for the absent-without-leave offense.

7.  On 5 June 1979 he was transferred to Germany for assignment to an aviation company in Wertheim, Germany.

8.  On 14 August 1979, charges were preferred against the applicant for throwing a pool ball through a window of the noncommissioned officers club, for throwing speakers through his billets room window, for cutting his left wrist with a knife, for being drunk and disorderly, and for breaking restriction.

9.  On 16 August 1979 after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.

10.  The appropriate authority (a major general) approved his request on 21 August 1979 and directed that he be discharged under other than honorable conditions.

11.  Accordingly, on 5 September 1979, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 3 months and 29 days of active service during his current period of active duty for a total of 10 months and 6 days of total active service.

12.  There is no indication in the available records to show he ever applied to the Army Discharge review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him/her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he/she must indicate that he/she has been briefed and understands the consequences of such a request as well as the discharge he/she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

14.  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 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.

2.  Accordingly, the type of discharge directed and the reasons were therefore appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

4.  The applicant's contentions have been noted; however, the Board does not upgrade discharges simply for the purpose of obtaining benefits, especially when considering his overall undistinguished record during such a short period of service.

5.  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)                                         AR20100007391



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)