BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100011240 


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 his under other than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states, in effect, his discharge should be upgraded.

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 enlisted in the Regular Army on 31 July 1972 and after completion of basic combat training, he was reassigned to Fort Lee, VA, for completion of military occupational specialty 76P (Stock Control and Materiel Accounting Specialist).  (The highest rank/grade he attained during his military service was private/E-1.

3.  On 6 November 1972, he departed his Fort Lee training unit in an absent without leave (AWOL) status but he returned on 13 November 1972.  

4.  On 13 November 1972, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the above AWOL.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

5.  On 22 November 1972, he again departed his training unit in an AWOL status but returned to his unit on 13 December 1972.  However, on 18 December 1972, he again departed his unit in an AWOL status and he was dropped from the Army rolls on the same date.  He returned to military control on 14 May 1973.

6.  His records reveal two more instances of AWOL from 11 to 13 June 1973 and from 18 June to 15 October 1973.  

7.  On 17 October 1973, his command preferred court-martial charges against him for four specifications of being AWOL.

8.  On 18 October 1973, 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 a discharge under other than honorable conditions, 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).

9.  In his request for discharge, he acknowledged he understood that by requesting discharge he understood that 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 that he understood that 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 and could expect to encounter substantial prejudice in civilian life.

10.  With his request for discharge, he submitted a statement wherein he indicated that he was not suitable for the military and wanted a discharge.  He admitted to his extensive history of AWOL and believed the Army was not for him.

11.  On 6 November 1973, his immediate and intermediate commanders recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.  Each remarked that the applicant was unwilling to adjust to military service and that further disciplinary or rehabilitation action was futile.  

12.  On 12 November 1973, the separation authority approved the applicant's request for discharge under the provisions of chapter 10 of Army Regulation  635-200, for the good of the service and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  On 
29 November 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 6 months and 4 days of creditable active military service and he had 290 days of lost time.

13.  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.

14.  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.

15.  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 contends that his discharge should be upgraded.   

2.  His records show 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 voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  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 either a general 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)                                         AR20100011240



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ABCMR Record of Proceedings (cont)                                         AR20100011240



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