IN THE CASE OF:	

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20100008397 


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 upgrade of undesirable discharge to an honorable discharge.

2.  The applicant states, in effect, he had requested a hardship discharge because of family and financial problems; however, the officer at Fort Bragg, NC said he would not consider his request.

3.  The applicant provides a copy of this DD Form 258A (Undesirable Discharge Certificate) and nine character reference letters.

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’s record shows he was inducted into the Army of the United States on 18 February 1969 for a period of 2 years.  He completed the required training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  Records further show the highest rank/grade he attained was private (PV1)/E-1.

3.  On 21 October 1969, a special court-martial convicted the applicant of being absent without leave (AWOL) from on or about 23 July 1969 through on or about 1 October 1969.  The resultant sentence was confinement at hard labor for two months, suspended two months.

4.  The applicant's records contain a DA Form 2476 (Application for Separation – Hardship or Dependency), dated 5 November 1969, requesting that he be separated from the Army due to hardship.

5.  The applicant's records indicate he went AWOL on 30 November 1969, he was apprehended on 24 June 1974, and he was returned to military control at Fort Bragg.

6.  On 27 June 1974, court-martial charges were preferred against the applicant for one specification of being AWOL from 30 November 1969 through 24 June 1974.

7.  On 27 June 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 that he had not been coerced into requesting discharge and he had been advised of the implications that were attached to the request.

8.  The applicant consulted with legal counsel on 27 June 1974 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 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 law.  The applicant submitted 
a statement in his own behalf.  The applicant stated in effect, that he no longer 

wanted to stay in the Army.  He further stated that he despises the service and he knew his rights and did not want to serve.

9.  On 13 August 1974, the separation authority approved the applicant's request for discharge and directed that he receive an Undesirable Discharge Certificate.  On 20 August 1974, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 7 months and 27 days of creditable active military service and that he accrued 1,767 days of time lost.

10.  The applicant provided nine character reference letters written by family members and friends, who described, in effect, the hardships he had encountered while serving on active duty.

11.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) 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 3-7a, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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 contention that his undesirable discharge should be upgraded because he asked for a hardship discharge was carefully considered but found to be insufficient in evidence.

2.  Although the applicant requested a hardship discharge there is no indication that he waited for leadership to respond to his request before going AWOL for the second time.

3.  Evidence of record shows the applicant's 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 voluntary, administratively correct, and in compliance with applicable regulations.

4.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were met, and that the rights of the applicant were fully protected throughout the separation process.

5.  Evidence of record shows the applicant was charged with being AWOL during the period 23 July 1969 through 1 October 1969 and 30 November 1969 through
through 24 June 1974, and he had over 1,700 days of time lost.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time also renders his service unsatisfactory. Therefore, he is not entitled to an honorable or a general, under honorable conditions discharge.

6.  Accordingly, the type of discharge directed was appropriate considering all the facts of the case.

7.  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)                                         AR20100008397



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)