IN THE CASE OF:	  

		BOARD DATE:	  12 October 2010

		DOCKET NUMBER:  AR20100010417


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:

* when he enlisted, he told the recruiter he needed "time to adjust"; however, he was given no time, he was ordered to active duty
* he was ill advised about his options and requested a discharge
* he had a drug problem which caused him to be absent without leave (AWOL) and he got no help for his drug problem

3.  The applicant provides a Department of Veterans Affairs (DVA) printout showing he is ineligible for health care without a discharge upgrade.

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 1 May 1974 for 3 years with 
14 days of prior inactive service.  It appears the applicant enlisted under the delayed entry program (DEP).  On 10 May 1974, he was assigned to Fort Dix, NJ for basic combat training (BCT).

3.  The applicant was AWOL from his BCT unit as follows:

* from 3 June through 4 June 1974
* from 10 June through 10 June 1974
* from 17 July through 6 December 1974

4.  When he returned to military control after his latest period of AWOL he was reassigned to Company A, Personnel Control Facility.  He continued to go AWOL as follows:

* from 25 March through 8 April 1975
* from 6 May through 22 September 1975
* on 29 September 1975
* from 28 October through 17 November 1975

5.  On 25 November 1975, court-martial charges were preferred against the applicant for the above periods of AWOL.  On 5 December 1975, he consulted with legal counsel and after doing so, 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.  He acknowledged that he was guilty of the charge(s) against him, charges which authorized the imposition of a punitive discharge.  He also stated that he had no desire for rehabilitation or further military service, and that he understood the nature and consequences of the UD that he might receive.  He declined to submit a statement in his own behalf.

6.  The applicant's immediate chain of command recommended approval of the applicant's request for discharge and forwarded it to the approving authority.  On 16 December 1975, the approving authority accepted the applicant's request for discharge and directed that he be issued an Undesirable Discharge Certificate.

7.  On 30 December 1975, the applicant was discharged accordingly.  He had
9 months and 11 days of creditable active service and 323 days of lost time.

8.  There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade during that board's 15-year statute of limitations.

9.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UD was normally considered appropriate at the time.

10.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states that an Honorable Discharge (HD) 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.

	b.  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 HD.  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 his UD be upgraded to a GD.

2.  The applicant voluntarily enlisted for 3 years.  He went to BCT, but kept going AWOL while in training; he never completed BCT.  He amassed almost 1 year of lost time.  Court-martial charges were preferred against him and, if convicted, he could have received a bad conduct or dishonorable discharge.

3.  The applicant's 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 that the request was made under coercion or duress.

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

5.  There is no indication the applicant sought and was denied a delay in reporting for active duty.  On the contrary, it appears he enlisted under the DEP for a 2-week delay in reporting.

6.  There is no indication the applicant had a drug problem, nor is there any indication he sought, and was denied treatment.

7.  It is inappropriate, given the applicant's service record, to upgrade his UD to a GD.

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)                                         AR20100010417



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ABCMR Record of Proceedings (cont)                                         AR20100010417



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