BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100008921 


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 his undesirable discharge to a general discharge.

2.  The applicant states:

* he is seeking veteran’s healthcare benefits
* he believes the terms of his enlistment were falsified
* he was told his duty location would be different than it ended up to be
* he requested a change of duty station and his request was denied twice
* he believes he was treated unfairly and unjustly based on the terms of his enlistment
* his Army recruiter and training personnel led him to believe his career would be different than it ended up to be
* his duty location did not serve his career objectives
* he desires the Board to consider that his actions were impulsive due to his age and that he did perform to standards during the time he served
* he believes he should be eligible for health care based on his service of 
1 year, 1 month, and 28 days.   

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) dated 13 January 1976. 




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 26 August 1974, at age 18, he enlisted in the Regular Army for the CONUS station of choice enlistment option (Fort Knox, Kentucky), military occupational specialty (MOS) 95C (Correctional Custody Specialist) and in pay grade E-1.  He completed basic training at Fort Polk, Louisiana and advanced individual training at Fort Gordon, Georgia.  Upon completion of his training, he was awarded MOS 95C and he was assigned to Fort Knox in his MOS.  He was advanced to the rank of private (PV2) on 26 December 1974.

3.  On 8 July 1975, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for having in his possession .78 grams more or less of marijuana on or about 24 April 1975.  His punishment consisted of reduction to PV1 and a forfeiture of $170.00 pay month for 2 months.  He did not appeal this punishment. 

4.  On 13 November 1975 the applicant was charged with being absent without leave (AWOL) from on or about 14 August until 4 November 1975.  He was dropped from the rolls on 12 September 1975.

5.  On 13 November 1975, the applicant was referred for trial by special court martial.

6.  On 21 November 1975, the applicant voluntarily requested a 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 requested this discharge based on the charges preferred against him under the UCMJ for being AWOL.

7.  The applicant consulted with counsel and he was advised of his rights.  He acknowledged he understood that if his discharge request was approved he might be discharged under other than honorable conditions and furnished an 
Undesirable Discharge Certificate.  He acknowledged as a result of the issuance of such a discharge he would 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 he understood he may expect to encounter substantial prejudice in civilian life if he were issued such a discharge.  He submitted a statement in his own behalf, explaining he went AWOL because he could not conform to the Army’s ways and he was not ready for the Army.  He stated he wanted to get married but wanted to be discharged from the Army first.  

8.  On 15 December 1975, the applicant's company commander recommended approval of his request with the issuance a general discharge.  

9.  On 24 December 1975, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200,
chapter 10, and directed he be issued an Undesirable Discharge Certificate.

10.  The applicant was discharged on 13 January 1976 in the pay grade of E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He was furnished an Undesirable Discharge Certificate.  He had completed 1 year, 1 month, and 28 days of active service with 82 days of lost time.

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 that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could 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.  At the time an undesirable discharge was normally considered appropriate.

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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to honorable.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

2.  The Board does not grant relief solely for the purposes of an applicant qualifying for benefits administered by other agencies.

3.  The applicant enlisted in the Regular Army for a 3 year period on 26 August 1974 for a CONUS assignment of choice (Fort Knox) and MOS 95C.  He completed his training, he was awarded MOS 95C, and he was assigned to Fort Knox in accordance with his enlistment contract.  In fact, he left Fort Knox in an AWOL status.  The available evidence does not support that he was promised anything else.

4.  The applicant met entrance qualification standards to include age.  Further, there is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

5.  The applicant had 82 days of lost time; therefore, his conduct and performance were not acceptable for military personnel and he has not provided sufficient evidence to mitigate his behavior to warrant upgrading his 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)                                         AR20100008921



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ABCMR Record of Proceedings (cont)                                         AR20100008921



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