IN THE CASE OF:	  

		BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100012065


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:

* an upgrade of his undesirable discharge to an honorable discharge
* military benefits
* back pay that he should have received

2.  The applicant states:

* he joined the Army to fight from a "chopper" as a sniper or a door gunner
* he joined the Army; he was not drafted
* the recruiter promised him he would get what he asked for; but he lied just to make his quota
* when he told the company commander that he was not getting what he was promised, he was told to "shut up and go"
* the Army let him down and if he had just "went over there and not got killed" he would have a least made it to the pay grade of E-5
* he wanted to make being in the Army his life because his dad and his uncle wanted him to join
* he was not able to get what he wanted so he went home to help his brother who was ill
* he went "over the hill" five or six times as a result of his brother's death and he was told by his commanding officer he should have been discharged due to hardship a long time ago


* both he and the Army were wrong
* if he had been sent overseas with his buddies, none of this would have ever happened

3.  The applicant provides no additional documentation.

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 on 29 September 1970 for 2 years. He completed training as a radio operator.

3.  The applicant's records contain a DD Form 4 (Enlistment Contract - Armed Forces of the United States) that shows he enlisted for the "Regular Army Enlistment Option."  His records also contain a DA Form 3286-3 (Statements for Enlistment) that contains the following:

	Item 1 states, "in connection with my enlistment in the Regular Army for the "Regular Army Enlistment Option," I hereby acknowledge that:

* My initial assignment to training and/or duty will be determined in accordance with the needs of the Army
* My enlistment for this option carries with it no guarantee or implied promise that I will be assigned to a specific training duty, or location, notwithstanding any personal qualifications, previous training, job experience, or personal desires which I may have

   Item 2 states, "I have read and understand the meanings of each of the above statements.  Furthermore, to avoid misunderstandings I have recorded in my own words and handwriting, all the spoken and written promises that have been made to me in connection with my enlistment in the Regular Army.

Evidence further shows the applicant printed the word "NONE" in item 2, followed by the date "29 SEPT 70" and his signature "J---- R--- E---."

4.  The applicant had NJP imposed against him for being absent without leave (AWOL) from 1 February 1971 until 17 February 1971.  He was convicted by a special court-martial of being AWOL from 9 April 1971 until 22 June 1971.  His records show he was also AWOL on 22 July 1971 and he was AWOL from 2 August 1971 until 29 August 1971.

5.  His records show that he wrote several letters to the President requesting to be discharged from the Army because he needed to be at home to help his father take care of their land.  In his letters he claimed his father was ill.  He was threatening to expose the Army and to continue to go AWOL if he was not allowed to go home.

6.  The applicant's DD Form 458 (Charge Sheet) is not filed in the available records.  However, his records show that on 8 March 1972, 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 applicant's voluntary request for discharge on 28 March 1972 and he directed the issuance of an Undesirable Discharge Certificate.  Accordingly, on 4 April 1972, 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 1 year,
2 months, and 7 days of total active service.

8.  The available records do not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's
15-year statute of limitation.

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, 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. 

10.  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.  

11.  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 was discharged in accordance with applicable laws and regulations in effect at that time.

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

3.  His contentions have been noted; however, they are not sufficiently mitigating to warrant the relief requested.  His records show that he went AWOL because he no longer had a desire to be in the Army.  He submitted a request for discharge for the good of the service - in lieu of trial by court-martial and his request was approved.  He has submitted no evidence to show that his recruiter lied to him at the time of his enlistment.  In fact, his enlistment contract shows he enlisted for the "Regular Army Enlistment Option" and he acknowledged in his own writing that no other promises was made by his recruiter.  Therefore, going AWOL simply because he "did not get what he asked for or was promised" is an insufficient justification to upgrade his discharge.

4.  Additionally, the applicant states that he wanted to make the Army his life.  However, the evidence of record shows he wanted to get out of the Army.  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.

5.  Based on the type of discharge he received, the applicant is not entitled to any back pay or military benefits.  Considering his numerous acts of indiscipline, the type of discharge he received appropriately reflects his overall record of service.

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)                                         AR20100012065



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ABCMR Record of Proceedings (cont)                                         AR20100012065



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