IN THE CASE OF:	  

		BOARD DATE:	  31 August 2010

		DOCKET NUMBER:  AR20100009625 


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 that his undesirable discharge be upgraded to a general, under honorable conditions discharge.

2.  The applicant states he was injured and was trying to get a hardship discharge.  He contends that he did not understand what was going on at the time of the decision.  

3.  The applicant provides no additional documents in support of this 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.  The applicant was inducted into the Army on 4 March 1969.  

3.  On 22 March 1969, he accepted nonjudicial punishment for being absent without leave (AWOL) from 15 March 1969 to 20 March 1969.

4.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that in addition to the AWOL offense from 15 March 1969 to 
20 March 1969, he had five additional AWOL offenses.  It also shows he was in confinement from 23 June 1970 to 20 July 1970.  

5.  A DD Form 458 (Charge Sheet), dated 18 August 1971, shows that court-martial charges were preferred against him for four specifications of AWOL.

6.  On 13 September 1971, after consulting with counsel, he requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

7.  The separation authority approved his request for discharge and directed he be issued an Undesirable Discharge Certificate.  On 21 October 1971, he was discharged with his service characterized as under conditions other than honorable.  He completed 8 months and 18 days of creditable active military service and had accrued 545 days of lost time.

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

9.  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 Veterans Administration 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.

10.  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's request for an upgrade of his undesirable discharge to a general, under honorable conditions discharge has been carefully reviewed.

2.  The evidence of record confirms he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.   The record shows that after consulting with defense counsel, he voluntarily requested discharge from the Army to avoid trial by court-martial.  His 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.

3.  The applicant's record of indiscipline includes nonjudicial punishment, AWOL on 6 occasions, and 545 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100009625



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ABCMR Record of Proceedings (cont)                                         AR20100009625



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