IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100010114 


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, in effect, an upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states, in effect, he was immature and made some very bad decisions.   He went along with the wrong crowd and lost focus of his job.  He accepts responsibility for everything that happened. 

3.  He states that over the past 30 years he has been a productive and worthy citizen of the state of Alabama.  He and his brother run their own construction and remodeling company.  It would be of great benefit now for his discharge to be upgraded so that later in life he can have the benefits associated with an honorable discharge and be afforded the things other honorable veterans are afforded. 

4.  The applicant has not provided any documentation in support of his request. 

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 18 December 1973 for a period of 3 years, station of choice option (assignment to Fort Benning, GA), and for training in military occupational specialty (MOS) 43E (Parachute Rigger).  His records show he completed basic combat training; however, he did not complete advanced individual training and he was not awarded an MOS.

3.  A copy of a DA Form 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) shows the applicant received nonjudicial punishment (NJP) for failing to go to his appointed place of duty on 
18 March 1974.  The punishment imposed was a forfeiture of $60.00 pay.  He did not appeal the punishment.   

4.  A copy of a DD Form 458 (Charge Sheet) shows he went into an absent without leave (AWOL) status on or about 15 April 1974 and was dropped from Army rolls as a deserter on 14 May 1974.  He returned to military control on 
12 July 1974.  

5.  On 24 July 1974, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  Prior to submitting his request, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  The applicant chose to submit a statement with his request.

7.  The applicant indicated in his written statement that he disliked the Army because he could not adjust to the rules.  He stated he did not have an attitude about the Army but just did not like it.  He stated that rehabilitation would be of no use to him and he acknowledged he understood he would be issued an undesirable discharge but he still wanted to get out of the Army.  

8.  On 9 August 1974, the separation authority approved the applicant's request for discharge and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate) and reduction to the lowest enlisted grade. 

9.  The applicant's DD Form 214 shows he was discharged on 30 August 1974 under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.  He had completed 5 months and 15 days of net active service and he had a total of 88 days of time lost.

10.  There is no evidence showing the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

12.  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.  

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.  The applicant contention that his undesirable discharge should be upgraded to an honorable discharge was carefully considered.   However, the applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of the law and regulation were met and the applicant's rights were fully protected throughout the separation process. 

2.  The applicant's post-service accomplishments were noted; however, the applicant's indiscipline includes NJP and 88 days of time lost.  Therefore, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel and his post service accomplishments are not sufficiently mitigating to warrant the requested relief.  Therefore, the applicant is not entitled to an upgrade of 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)                                         AR20100010114



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100010114



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1