IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100007743 


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 an upgrade of his undesirable discharge (UD) to a general discharge.

2.  He states that he was 17 years of age at the time and didn't understand the importance of Army life.

3.  He provides no additional documents 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.  On 1 April 1968, the applicant enlisted in the Regular Army in pay grade E-1 for 3 years at 17 years and 7 months of age.  He completed training and was awarded military occupational specialty 62E (Crawler Tractor Operator).  He was advanced to pay grade E-2 on 1 August 1968.  This is the highest grade he held during his period of service.

3.  On 27 February 1970, a DD Form 458 (Charge Sheet) was prepared by the Commander, U.S. Army Special Processing Detachment, Fort Meade, Maryland. 
He was charged with two specifications of being absent without leave (AWOL) from 15 May 1969 through 30 May 1969 and from 28 June 1969 through 13 February 1970, and one specification of escaping from lawful confinement on 28 June 1969.

4.  On 3 March 1970, after consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be discharged under other than honorable conditions and furnished a UD Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected not to submit a statement in his own behalf.

5.  On 4 March 1970, his unit commander recommended approval of his request for discharge with the issuance of a UD Certificate.  The unit commander stated the applicant's actions made him vulnerable to punitive or other adverse personnel actions.  There appeared to be no grounds for other disposition of the applicant.

6.  On 5 March 1970, the appropriate authority approved his request for discharge for the good of the service, directed that a UD Certificate be issued, and directed that he be reduced to pay grade E-1.

7.  He was discharged in pay grade E-1 on 13 March 1970 for the good of the service in lieu of trial by court-martial with a UD.  He was credited with 1 year, 2 months, and 27 days of net active service and 256 days of lost time.

8.  There is no indication the applicant requested assistance through his chain of command for any personal problems which prevented him from completing his period of service.

9.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

10.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 specified that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UD was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

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 could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  His contention was considered; however, it is not supported by the evidence and does not support an upgrade of his UD.  He was 17 years and 7 months of age when he enlisted in the Regular Army.  He served in his enlistment from April 1968 until May 1969 without incident.  He was 19 years old when he first was AWOL.

3.  The evidence shows he was pending trial for 256 days of AWOL.  Upon his return to military control in February 1970, he voluntarily requested discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged and advised his unit commander that he desired to be discharged from the Army.  He also acknowledged he understood he could be furnished a UD Certificate.

4.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general discharge.

5.  His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.

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)                                         AR20100007743



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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ABCMR Record of Proceedings (cont)                                         A