IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100007735 


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 his undesirable discharge be upgraded to a general discharge.

2.  The applicant states:

* At the time of his discharge he was very young and really did not know what was going on
* He felt depressed and thought he was disliked by his officers
* He just wanted to go home
* He had 2 weeks of leave and his platoon sergeant approved his leave but the second lieutenant denied his request for leave
* He took leave anyway
* He felt he was being treated unfairly

3.  The applicant provides no documentary evidence 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 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 19 May 1957.  He enlisted in the Regular Army on 3 June 1974 for a period of 3 years.  He successfully completed basic combat training and advanced individual training and was awarded military occupational specialty 72E (telecommunications center specialist).

3.  On 18 February 1975, nonjudicial punishment (NJP) was imposed against the applicant for two specifications of failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

4.  On 27 February 1975, NJP was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to E-1 (suspended), a forfeiture of pay (suspended), and extra duty.

5.  On 8 April 1975, NJP was imposed against the applicant for three specifications of failing to be at his appointed place of duty.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

6.  On 10 June 1975, NJP was imposed against the applicant for three specifications of failing to be at his appointed place of duty.  His punishment consisted of 7 days of correctional custody, a reduction to E-1, and a forfeiture of pay.

7.  The applicant went absent without leave (AWOL) on 23 June 1975 and returned to military control on 28 July 1975.  On 30 July 1975, charges were preferred against the applicant for the AWOL period.  Trial by special court-martial was recommended.

8.  On 29 July 1975, after consulting with counsel, 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.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated wanted to get out of the Army because he could no longer adjust to the military.  

9.  On 15 August 1975, the separation authority approved the applicant's request for discharge and directed issuance of an Undesirable Discharge Certificate.

10.  Accordingly, the applicant was discharged with an undesirable discharge on 2 September 1975 under the provisions of Army Regulation 635-200, chapter 
10, for the good of the service - in lieu of court-martial.  He had served a total of 
1 year and 3 months with 36 days of time lost.

11.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  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 VA 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.  

13.  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.  Age is not a sufficiently mitigating factor.  Although the applicant was 17 years old when he enlisted, he completed his training.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial was administratively correct and in conformance with applicable regulations.  

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  The applicant's record of service included four NJPs and 36 days of time lost.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general 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)                                         AR20100007735





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ABCMR Record of Proceedings (cont)                                         AR20100007735



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