IN THE CASE OF:	  

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100008933


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 (GD).

2.  The applicant states he was told after waiting 10 years his UD would be upgraded to a GD.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 for 3 years on 10 October 1969.  He was trained in and awarded military occupational specialty 36K (Field Wireman) and assigned to Germany.  On 4 September 1970, the applicant reenlisted.

3.  The applicant's records contain three records of nonjudicial punishment under Article 15, Uniform Code of Military Justice, for:

* being absent without authority (AWOL) from his place of duty from 21 April 1971 to 11 May 1971, for which he received a forfeiture of $100.00 pay per month for 2 months and a suspended reduction to E-2

* failing to go to his appointed place of duty on 24 September 1971, for which he received a forfeiture of $200.00 pay per month for 2 months and 14 days of restriction and extra duty

* failing to go to his appointed place of duty on 2 December 1971, for which he received a forfeiture of $70.00 pay per month for 1 month

4.  The applicant's records show he had 225 days of lost time due to being AWOL on the following dates:

* 19710421-19710510 – 020 days
* 19711214-19711216 – 003 days
* 19720211-19720211 – 001 days
* 19720212-19720824 – 195 days
* 19720927-19721002 – 006 days
   Total	225 days

5.  Court-martial charges were preferred against the applicant on 13 September 1972 for his periods of AWOL from 11 February 1972 to 24 August 1972.  After consulting with legal counsel, he requested separation for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  In so doing, he acknowledged that he was guilty of the charge(s) against him.  He stated that he had no desire for rehabilitation or further military service and he acknowledged he understood the nature and consequences of receiving a discharge under other than honorable conditions.  He declined to submit a statement in his own behalf.

6.  On 25 September 1972, the approving authority granted the applicant's request for discharge in lieu of trial by court-martial with the issuance of a UD.



7.  The applicant was discharged on 2 October 1972.  His DD Form 214 lists the reason and separation authority as Army Regulation 635-200, chapter 10, for the good of the service.

8.  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 GD is authorized, a discharge under other than honorable conditions is normally considered appropriate.  At the time, a UD was normally issued.

9.  Army Regulation 635-200 provides guidance on characterization of service.  Paragraph 3-7b states that a GD 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 requests an upgrade of his UD to a GD.

2.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

3.  The applicant's voluntary request for separation under the provisions of chapter 10, Army Regulation 635-200, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  His characterization of service was both proper and equitable.

4.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, indicates he wished to avoid the court-martial and the punitive discharge that he may have received.



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)                                         AR20100008933



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)