IN THE CASE OF:	  

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100010549 


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 discharge.

2.  The applicant states, in effect, he was told he would be given a general discharge for providing a statement against another Soldier.   

3.  The applicant provides no additional documents with his 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 enlisted in the Regular Army in Oklahoma City, OK on 19 January 1971 for a period of 3 years and training as a fixed plant carrier equipment repairer.  He completed basic combat training at Fort Leonard Wood, MO.  He was transferred to Fort Monmouth, NJ on 14 April 1971, to undergo his advanced individual training.  On 16 April 1971, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 14 April to 16 April 1971.  

3.  On 27 May 1971, NJP was imposed against him for being AWOL from 15 May to 17 May 1971.  On 18 May 1971, he was dropped from the rolls (DFR) and on 24 May 1971, he returned to military control. 

4.  Summary Court Martial Order Number 632, U.S. Army Training Center, Infantry and Fort Dix, dated 27 August 1971, indicates the applicant was charged with one specification of violating Article 86 of the Uniform Code of Military Justice (UCMJ) for his AWOL period of 18 May to 24 May 1971.  The charges were dismissed on the ground of prior punishment imposed. 

5.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he again went AWOL on 10 June 1971 and did remain so until 
19 June 1971.

6.  A copy of a DD Form 458 (Charge Sheet), dated 4 January 1972 shows the applicant was charged with being AWOL from 31 August to 25 November 1971 and 30 November 1971 to 4 January 1972.

7.  On 11 January 1972, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations –Enlisted Personnel), chapter 10, in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.  

8.  The appropriate authority (a major general) approved his request on 8 May 1972 and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate). 

9.  Accordingly, on 8 May 1972, he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an undesirable discharge.  He had served 11 months and 7 days of total active service and he had 134 days of lost time due to being AWOL.
10.  There is no indication in the available records to show that he ever applied to the Army Discharge Review Board 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 the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  An undesirable discharge was normally considered appropriate.

12.  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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by courtmartial was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.   





4.  The applicant’s contention that he was promised a general discharge for making a statement against another Soldier was considered; however, there is no evidence that the applicant was made such a promise.  Based on the lack of mitigating circumstances, the applicant's extensive length AWOL and the short period he served do not warrant an upgrade of his discharge.  

5.  In view of the foregoing, there appears to be no reason to grant the requested relief. 

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)                                         AR20100010549



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ABCMR Record of Proceedings (cont)                                         AR20100010549



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