IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100008535 


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 discharge.

2.  The applicant states he was given a choice of 10 days of confinement or discharge.  Since he did not know what the characterization would be, he chose to be discharged.  He states he volunteered to serve our country.

3.  The applicant provides no documents or argument to substantiate his case.

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 enlisted in the Regular Army on 29 September 1975.  He completed training and was awarded military occupational specialty 11B as an infantryman.

3.  He was absent without leave (AWOL) from 3 May 1976 to 18 June 1976.  When charges were preferred for that offense, the applicant consulted with counsel and requested discharge under the provisions of Army Regulation 
635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service in lieu of trial by court-martial.

4.  In his request for discharge, the applicant indicated he understood that by requesting discharge he was admitting guilt to the charges against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

5.  The separation authority approved the request and directed issuance of an under other than honorable conditions discharge.  On 15 July 1976, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10.  He had completed 8 months and 2 days of creditable active service.

6.  On 4 November 1981, the Army Discharge Review Board denied his request to upgrade the discharge.

7.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

8.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses under the Uniform Code of Military Justice.  A punitive discharge is authorized for any AWOL of more than 30 days.

9.  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.  Paragraph 3-7b states that a general discharge is a separation under honorable conditions issued to a Soldier whose military record is satisfactory but not so meritorious as to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was given a choice of 10 days of confinement or discharge.  Since he did not know what the characterization would be, he chose to be discharged.  He states he volunteered to serve our country.

2.  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.  There is no indication the request was made under coercion or duress.  The applicant's service was appropriately characterized by the offenses for which he was charged.

3.  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.

4.  In view of the foregoing there is no basis for granting the applicant's requested relief.

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)                                         AR20100008535



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20