BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100010585 


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 an honorable discharge.
 
2.  The applicant states his discharge should be upgraded for the following reasons:

* He was very young when he enlisted and he served honorably during his first term
* He also completed most of his second enlistment honorably
* His wife experienced problems during pregnancy and he stayed home to help her
* He realizes he should have asked for a hardship discharge

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 record shows he was inducted into the Army of the United States on 14 November 1968 at the age of 17.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 55B (Ammunition Storage Specialist).  He was honorably released from active duty on 20 June 1970 and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining Reserve obligation.

3.  He enlisted in the Regular Army on 18 November 1970 in MOS 62E (Crawler Tractor Operator).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

4.  His records show he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 20 October 1971 for being absent without leave (AWOL) and on 28 February 1972 for failing to go at the time prescribed to his appointed place of duty.  Records also show he went AWOL on 28 September 1972 and was returned to military control on                  3 November 1972.

5.  On 6 November 1972, at Fort Carson, CO, his command preferred court-martial charges against him for one specification of being AWOL from on or about 28 September through 3 November 1972. 

6.  On 8 November 1972, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or undesirable discharge, the maximum permissible punishment authorized under the UCMJ, 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 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 acknowledged he understood by requesting discharge he understood if the discharge request was approved, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood that he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and could be deprived 


of his rights and benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.  He submitted a statement with his request for discharge wherein he indicated his attitude towards the Army was poor, he had no rehabilitation potential, and being in the Army was hurting his marriage because of the small amount of pay.

8.  On 8 November 1972, his immediate commander recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.  

9.  On 28 November 1972, his senior commander recommended approval with the issuance of an Undesirable Discharge Certificate.  He remarked that further efforts to rehabilitate the applicant were futile.

10.  On 5 December 1972, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of a court-martial and directed he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  On 11 January 1973, he was accordingly discharged.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed a total of 3 years, 4 months, and 16 days of creditable active military service and he had 137 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, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 3-7a, 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.


14.  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 contention that his undesirable discharge should be upgraded to an honorable discharge was carefully considered and it was determined there is insufficient evidence to support this request.

2.  The applicant contends he went AWOL to help his wife during a difficult pregnancy.  However, there is no evidence in his record nor did he provide any evidence to support this contention.  Additionally, he had many legitimate avenues through which he could have received assistance or relief for this situation had he chosen to use them.

3.  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 Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily requested discharge from the Army in lieu of trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 

4.  The applicant's record of service shows that he received NJP under the provisions of Article 15, UCMJ, on 20 October 1971 for being AWOL and on     28 February 1972 for failing to go at the time prescribed to his appointed place of duty.  On 28 September 1972, he again went AWOL which was the basis for his voluntary discharge.

5.  Based on his record of indiscipline, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge or an honorable 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)                                         AR20100010585



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ABCMR Record of Proceedings (cont)                                         AR20100010585



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