BOARD DATE:	  28 September 2010

		DOCKET NUMBER:  AR20100011187 


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:

* He entered the Army at age 17 and he was very immature
* He was unable to adjust to military life 
* He was incarcerated from March 1970 until June 1972
* He sincerely regrets not being able to serve his country and he has been very ashamed of his service record
* It has been 35 years and he is 57 years old
* It would be nice to have an Honorable Discharge Certificate on his wall

3.  The applicant provides:

* A letter from the National Personnel Record Center, dated 4 September 2006
* DD Form 214 (Report of Separation from Active Duty), dated 28 January 1976
* Executive Order 2007-1117 from the Governor of the Commonwealth of Kentucky, dated 10 December 2007, granting him a pardon
* A letter from the Deputy General Counsel of the Commonwealth of Kentucky, dated 12 December 2007, notifying him that he was being granted a pardon

* A letter from the Christian Circuit Court, Division I dated 16 February 2010, attesting to his good character and behavior
* An undated letter from the Education and Workforce Development Cabinet Office of Employment and Training, attesting to his community and contributions

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.  On 9 July 1969, the applicant enlisted in the Army for 3 years.  He successfully completed training as a wire/lineman.

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 29 July 1969 for being absent without leave (AWOL) from 20 July 1969 until 28 July 1969.  His punishment included a forfeiture of pay, restriction, and extra duty.

4.  The applicant's records also show he was AWOL from 7 October to 15 October 1969 and from 5 March to 21 May 1970.  However, his records do not show the punishment that was imposed.

5.  The applicant went AWOL on 22 June 1970 and he remained absent in desertion status until he was apprehended by civil authorities and returned to military control on 27 November 1975.  He was placed in pre-trial confinement on 1 December 1975.

6.  On 1 December 1975, the applicant was notified that charges were pending against him for being AWOL from 22 June 1970 until 27 November 1975.  He acknowledged receipt of the notification and, after consulting with counsel, he submitted a request for 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.  In his request for discharge, the applicant acknowledged he understood the following:
* if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits
* he may be ineligible for many or all benefits administered by the Veterans Administration
* he may be deprived of his rights and benefits as a veteran under both Federal and State laws
* he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge

7.  The appropriate authority approved the request for discharge on 19 December 1975 and he directed the issuance of an undesirable discharge.  Accordingly, on 28 January 1976, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He had completed 9 months and 11 days of total active service and he was issued an Undesirable Discharge Certificate.

8.  His DD Form 214 shows he had lost time from 5 March 1970 to 26 November 1975.

9.  On 24 July 1981, the Army Discharge Review Board (ADRB) denied the applicant's appeal for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, of the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the service. 




11.  Paragraph 3-7a of Army Regulation 635-200 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.  

12.  Paragraph 3-7b of Army Regulation 635-200 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 was discharged in accordance with applicable laws and regulations in effect at that time.

2.  The type of discharge directed was appropriate consideration all the facts of his case.

3.  His contentions have been noted; however, they are not sufficiently mitigating to warrant the relief requested.  His youth and/or immaturity does not justify what appears to have been numerous acts of indiscipline and his records show he acknowledged that he understood the affects of a less than fully honorable discharge at the time he submitted his voluntary request for discharge for the good of the service - in lieu of trial by court-martial.

4.  He contends that he was incarcerated from March 1970 until June 1972.  However, he did not return to duty once he was released.  He remained AWOL until he was apprehended by civil authorities and returned to military control on 27 November 1975.

5.  While he is commended for his post-service conduct and congratulated for the pardon he received, he had approximately 1,237 days of lost time due to being AWOL.  He had NJP imposed against him as a result of his acts of misconduct.  Considering the nature of his offenses, the undesirable discharge he was issued appropriately reflects his overall record of service.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100011187



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ABCMR Record of Proceedings (cont)                                         AR20100011187



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