IN THE CASE OF:	  

		BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100012080 


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 discharge be upgraded. 

2.  The applicant states that the cause of the event that led to his discharge was never verified to be in compliance with military regulations and the officer making the charges was known for his lack of concern for racial conditions.  He further states that his discharge has been a thorn in his flesh because of the lack of concern of the officer of the day.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 in Oakland, California on 1 February 1973 for a period of 3 years and training as a stock control and accounting specialist.  He completed his basic training at Fort Ord, California and his advanced individual training at Fort Lee, Virginia before receiving orders transferring him to Germany with a report date of 23 July 1973.  The applicant did not report as ordered and was reported as being absent without leave (AWOL) effective 23 July 1973.  He remained absent in desertion until he was returned to military control at Fort Ord on 14 December 1973.  He again went AWOL on 19 February 1974 and remained absent until he was returned to military control on 26 February 1974.

3.  On 5 March 1974, he was convicted by a special court-martial, pursuant to his pleas, of being AWOL from 22 July to 13 December 1973 and 19 February to 25 February 1974.  He was sentenced to confinement at hard labor for 3 months, a reduction to the pay grade of E-1, and a forfeiture of pay for 3 months.  The applicant was subsequently transferred to the U.S. Army Retraining Brigade at Fort Riley Kansas.

4.  He departed Fort Riley in July 1974 for assignment to Fort Campbell, Kentucky in August 1974.  He was advanced to the pay grade of E-4 on 13 March 1975.

5.  On 23 August 1976, nonjudicial punishment was imposed against him for being AWOL from 9 August to 17 August 1976.

6.  He again went AWOL on 25 August 1976 and remained absent in desertion until he was apprehended by Federal Bureau of Investigation (FBI) personnel in Oakland, California on 13 January 1977 and was returned to military control at the Presidio of San Francisco and then transferred to Fort Ord, California, where charges were preferred against him for the AWOL offense.

7.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  However, the available records do contain a duly-constituted DD Form 214 which shows that the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial on 14 February 1977.  He had served 2 years, 11 months, and 1 day of total active service and had 433 days of lost time due to AWOL and confinement.

8.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.

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.  In the absence of evidence to the contrary, it must be presumed that 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 courtmartial, was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate under the circumstances.

3.  The applicant’s contention that the cause of the event was never verified to be in compliance with military regulations has been noted and found to lack merit.  The applicant was discharged under Chapter 10, Army Regulation 635-200, which required such a request to be voluntary and that the individual must admit 
guilt to the charges against them or to a lesser included offense that warranted a bad conduct or dishonorable discharge.  This in itself verifies that the charges against him were valid.  In any event, his service does not rise to the level of even a general discharge.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20100012080





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ABCMR Record of Proceedings (cont)                                         AR20100012080



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