IN THE CASE OF:	  

		BOARD DATE:	  28 September 2010

		DOCKET NUMBER:  AR20100012652 


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 general discharge. 

2.  The applicant states he got sick while undergoing basic combat training at Fort Jackson, SC.  He went to the infirmary several times with no improvement and he was required to go back to duty.  So, he went home to see a doctor at a civilian hospital in NC and it was determined he had developed a bleeding ulcer.  He was treated for this condition and returned home.  While at home, he received a phone call to return because he was in an absent without leave (AWOL) status. He returned on his own to the base and he was placed in a hospital.  After his health improved, he was released from the hospital and the Army.  He believed he was getting a medical discharge.  He would not have gone AWOL if he had not gotten sick or if he had received the proper medical attention.

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 for a period of 3 years on 3 December 1973 and was subsequently reassigned to Fort Jackson, SC, for completion of basic combat training.  He never completed training and he was not awarded a military occupational specialty (MOS).

3.  On 23 January 1973, while in training, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty.  

4.  On 13 February 1974, he departed his training unit in an AWOL status and on 14 March 1974 he was dropped from Army rolls.  He ultimately surrendered to military authorities at Fort Jackson, SC, on 21 May 1974.

5.  On 22 May 1974, court-martial charges were preferred against the applicant for the above period of AWOL.

6.  On 23 May 1974, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge, 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 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.

7.  In his request for discharge, he acknowledged he understood by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge.  He acknowledged he was making this request of his own free will and he had not been subjected to any coercion.  He also acknowledged he had been advised of the implications that were attached to his request.  He further acknowledged he understood that if the discharge request was approved, 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.  He submitted a statement in his own behalf in which he stated that he went home on the weekend and did not return because he wanted to request a discharge from the Army.  He also stated that he had the chance to be straight but refused to do so, and that he fully realized the consequences; nonetheless, he wished to make application for a discharge for the good of the service.

8.  On 24 May 1974, he underwent a separation medical examination as well as a mental evaluation at Fort Jackson, SC.  He completed a Standard Form 93 (Report of Medical History) and indicated he was in good health with no medical issues noted.  The attending physician completed a Standard Form 88 (Report of Medical Examination) and determined the applicant was qualified for discharge with no medical disqualifications. 

9.  On 28 May 1974, his immediate commander recommended approval of the applicant's discharge request with the issuance of an Undesirable Discharge Certificate.  He remarked the applicant's conduct and efficiency ratings were unsatisfactory, he was not suited for the Army, and he would never be a productive Soldier.

10.  On 28 May 1974, his intermediate commander also recommended approval with the issuance of Undesirable Discharge Certificate.  He remarked that he interviewed the applicant who made it clear he would staunchly resist any means to make him a productive Soldier.  Due to the applicant's total lack of response towards any form of counseling, any effort to rehabilitate him would have been futile. 

11.  On 30 May 1974, his senior commander also recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.

12.  On 3 June 1974, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  On 6 June 1974, the applicant was accordingly discharged.

13.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged for the good of the service - in lieu of a court-martial with an Undesirable Discharge Certificate.  This form further confirms he completed a total of 2 months and 27 days of total active service and he had
97 days of time lost.

14.  There is no evidence that indicate the applicant had a medical condition that warranted processing through the Physical Disability Evaluation System.  

15.  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. 
16.  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, 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.

17.  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 Army Regulation 635-200, chapter 10, 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, the applicant’s discharge accurately reflects his overall record of service.

3.  The applicant’s records reveal a period of military service marred by various incidents of misconduct that started during basic combat training that included offenses of being AWOL.  Nowhere in his records does it show he had a medical condition that prohibited him from performing his duties, that he was denied adequate medical treatment, or that he went AWOL because of a medical condition.


4.  Based on his record of indiscipline, his 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, the applicant is not entitled to an upgrade of his 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)                                         AR20100012652



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100012652



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1