BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100010348 


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

2.  The applicant states he was only 17 years of age and he did not understand the responsibility of being a service member.  He joined the Army because the judge gave him an option of enlisting or going to jail.  He was a minor and his father signed him up against his wishes. 

3.  The applicant did not provide any additional documentary evidence.

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's records show he was born on 7 October 1955 and on 
28 November 1972, his father signed a declaration of parental consent for him to enlist in the military.  At age 17, on 3 December 1972, the applicant enlisted in the Regular Army for a period of 3 years.  He was subsequently assigned to Fort Polk, LA, for completion of basic combat training.  

3.  On 5 February 1973, he departed his training unit in an absent without leave (AWOL) status and on 6 March 1973, he was dropped from Army rolls.  He was apprehended by Federal authorities in Long Beach, CA, and returned to military control on 19 April 1973. 

4.  On 24 April 1973, during an interview, he indicated that he had no feelings for the Army and if he was returned to the Army, he would go AWOL again.  He also stated that he would accept an undesirable discharge to get out of the Army.

5.  On 24 April 1973, court-martial charges were preferred against him for one specification of being AWOL from on or about 5 February to 19 April 1973. 

6.  On 24 April 1973, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested a discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

7.  In his request for discharge, he indicated he was making this request of his own free will and had not been subjected to any coercion whatsoever.  He also acknowledged he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  Additionally, he acknowledged he understood if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  On 3, 4, and 7 May 1973, his immediate, intermediate, and senior commanders recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate and stated that his pattern of behavior indicated retention was neither practical nor desirable. 

9.  On 15 May 1973, the separation authority approved the applicant's request for discharge, directed that he be reduced to the lowest enlisted grade, and separated under the provisions of chapter 10, Army Regulation 635-200 with an Undesirable Discharge Certificate.

10.  On 21 May 1973, the applicant was accordingly discharged.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he had completed a total of 
3 months and 8 days of creditable active military service and he had 73 days of lost time.

11.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 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 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.

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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his undesirable discharge should be upgraded to a general discharge under honorable conditions because he was young and that he was given the option of serving in the Army or going to prison.

2.  There is no evidence that the applicant was forced to join the military.  He admits that he was given an opportunity to join the Army and stay out of prison. His father merely consented to allowing him to join the Army because he was age 17, which was a legal age for him to join the military with parental consent.  The applicant did not need to sign the enlistment papers if he had rather taken his chances on going to jail.

3.  The evidence of 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.  He consulted with counsel and was advised of the contemplated trial by court-martial for his offense.  Only then did he voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general 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)                                         AR20100010348



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ABCMR Record of Proceedings (cont)                                         AR20100010348



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