IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100012658 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states he could not adjust to the military and that he was young and dumb at the time of his offenses.

3.  The applicant provides no additional documentary evidence in support of this application.

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 6 June 1954.  His military records show he enlisted in the Regular Army on 24 April 1972.  He was awarded the military occupational specialty of duty Soldier and the highest pay grade he held was pay grade E-2.

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 7 September 1972 for absenting himself from his unit without authority and on 11 October 1972 for twice being absent without authority and for breaking restriction from the company area.

4.  On 15 February 1973, court-martial charges were preferred against him for being absent from his unit on two separate occasions.

5.  On 21 February 1973, he voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  He acknowledged that he was advised of the basis of his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, and the rights available to him.  He acknowledged he was making the request of his own free will and was not subjected to coercion with respect to his request for discharge and that he had been advised of the implications attached to his request.

6.  He consulted with counsel prior to completing his request for discharge and was advised fully on the matter.  He acknowledged he understood if his discharge request was approved, he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veteran's Administration (now known as the Department of Veterans Affairs), and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He submitted a statement in his own behalf indicating he wanted to be discharged from the Army because he did not like the Army and that it would be better for both the Army and him if he was discharged for the good of the service.

7.  On 28 February 1973, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 
635-200, and directed he be given an Undesirable Discharge Certificate.

8.  On 6 March 1973, the applicant was discharged accordingly.  The DD Form 214 he was issued at that time shows he completed a total of 9 months and 24 days of active military service.  Item 26a (Non-Pay Periods Time Lost) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows five periods of lost time.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10, in effect at the time, provided that an individual who had committed an offense or offenses, the punishment for which, under the UCMJ and the Manual for Courts-Martial, included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service.  At the time of the applicant's separation, an Undesirable Discharge Certificate would normally be given to a member 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 (emphasis added), 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.

12.  On 4 October 1982, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his undesirable discharge.  However, the ADRB determined that the authority and reason for his discharge should be changed from Army Regulation 635-200, Chapter 10, for the good of the service, to show Army Regulation 635-200, paragraph 14-33b(1), (Misconduct - Frequent Incidents of a Discreditable Nature with Civil or Military Authorities).  A DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 29 September 1982 reflects this change.
  
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was young at the time.  While records show he was 18 years of age when he committed the offenses and was discharged, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligations. 

2.  His records show he accepted NJP for absenting himself from his unit without authority on three occasions and for breaking restriction from the company area.  He was further charged with absenting himself from his unit without authority on two additional occasions.  He voluntarily requested discharge for the good of the service, in lieu of court-martial.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  While the ADRB saw fit to change the reason and authority of his separation from for the good of the service to misconduct - frequent incidents of a discreditable nature with civil or military authorities, it determined his characterization of service was correct.

4.  Based on the applicant's misconduct, his service clearly does 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 a general or honorable discharge.

5.  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)                                         AR20100012658



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ABCMR Record of Proceedings (cont)                                         AR20100012658



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