IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100011405


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 to an honorable discharge.

2.  The applicant states he would like to become an honorable citizen again and receive Department of Veterans Affairs (VA) benefits.

3.  The applicant provides two letters of support.  The first letter describes how he started a volunteer fire department in Sandy Springs, OK.  The second letter describes his affiliation with the Benevolent and Protective Order of Elks.

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 was born on 13 March 1942.  He has three periods of Regular Army (RA) service, each defined by the issuance of a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  His three
DD Forms 214 are for the following periods:

* 10 October 1960 - 9 October 1963 (Honorable Discharge)
* 21 December 1964 - 28 November 1966 (Honorable Discharge)
* 29 November 1966 - 17 August 1971 (Undesirable Discharge)

3.  During his last period of RA service, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for:

	a.  without authority, failing to go at the time prescribed to his place of duty, to wit: Reveille Formation on 8 December 1969, for which he received a forfeiture of $25.00 pay per month for 1 month, suspended for 30 days; and

	b.  being absent without leave (AWOL) from 5 August 1970 until on or about 17 September 1970, and from 7 October 1970 until on or about 25 October 1970, for which he was reduced from specialist five (SP5)/E-5 to corporal (CPL)/E-4, received a forfeiture $100.00 pay per month for 2 months, and a reprimand.

4.  On 9 February 1971, the applicant departed his unit in an AWOL status and remained absent until on or about 12 July 1971.  He was placed in confinement at the Post Stockade at Fort Sill, OK and court-martial charges were preferred against him on 14 July 1971.

5.  While in confinement, the applicant requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  His request was subsequently approved by the Commanding General, Fort Sill on 12 August 1971.  The separation authority directed the issuance of an Undesirable Discharge Certificate and reduction to private (PV1)/E-1.

6.  On 17 August 1971, the applicant was discharged accordingly.  He had a total of 10 years, 1 month, and 28 days of total active service with 250 days of time lost due to AWOL and confinement.

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


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

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

9.  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, 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was a 29 year old SP5 with over 9 years of service when he committed repeated acts of indiscipline.  The Army initially dealt with his misconduct in a lenient fashion through NJP by punishing him with a suspended forfeiture of pay.  He did not learn from this and he re-offended.  He was again given NJP; this time, his punishment was harsher and included a reduction to CPL and forfeiture of pay.  He still failed to learn and modify his behavior.

2.  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.  His request for a chapter 10 discharge tends to show he wished to avoid the court-martial conviction and the punitive discharge that he might have received.

3.  This Board does not upgrade discharges solely for the purpose of qualifying an applicant for VA benefits.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100011405



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ABCMR Record of Proceedings (cont)                                         AR20100011405



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