DOCKET NUMBER:  AR20100012702 


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 discharge.

2.  The applicant states he is a member of an American Legion post.  He loves his post and would like to stay with them as long as he can.  He states, in effect, he would like his discharge upgraded.  He continues to state that he had three honorable terms of service and his last term was under honorable conditions because he went absent without leave (AWOL).  He is ashamed of what he did.

3.  The applicant provides no additional documents 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 enlisted in the Regular Army on 5 May 1970 and served honorably until he was transferred to the U.S. Army Reserve on 27 January 1972.

3.  On 31 May 1974, the applicant again enlisted in the Regular Army and served until his discharge on 2 February 1978 for the purpose of immediate reenlistment on 3 February 1978.

4.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), proceedings as a result of driving while drunk on 8 November 1978.

5.  A DD Form 458 (Charge Sheet), dated 7 November 1979, shows the applicant was charged with being AWOL from 25 May 1979 to 29 October 1979.

6.  On 8 November 1979, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He submitted a statement on his behalf.  He stated that he was in the Army before he came back in 1974.  He couldn't find a job so he came back in.  The reason he wanted to get out at that time was that his mother was sick and he didn't have anyone to help him with her.  If he could get back into an Army Reserve unit near his hometown, he would be glad to take the opportunity to do so as it would put him closer to his mother and he would be there with her.  When he returned to the Army, it took him 2 years to get his general education degree (GED).  He was 32 years of age when he started the GED program.  He joined the Army because he couldn't get a good job without a GED.  He is 34 years of age now.

7.  In his request for discharge, the applicant acknowledged he understood by requesting a 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 or dishonorable discharge.  He further acknowledged he understood that if his request were 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  On 4 December 1979, the applicant's company commander recommended approval with a discharge under other than honorable conditions.  On the same date, the applicant's intermediate commanders recommended separation with an undesirable discharge.

9.  On 26 December 1979, the separation authority approved the applicant's request and directed that he be separated 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 with an undesirable discharge.  On 1 February 1980, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed a total of 6 years, 10 months, and 29 days of creditable active service with 175 days of lost time.

10.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the following awards:

* National Defense Service Ribbon
* Army Good Conduct Medal (2nd Award)

11.  On 27 February 1991, the Army Discharge Review Board (ADRB) reviewed the applicant's petition for an upgrade of the characterization of service and a change to the reason for discharge.  The ADRB determined that the applicant's family situation was so severe as to partially mitigate the AWOL offense which led to this discharge.  As a result, his discharge was upgraded to a general discharge under honorable conditions.

12.  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 loss of VA benefits, and of the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Under Other Than Honorable Conditions Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial.  He acknowledged he understood that he could be ineligible for many or all benefits administered by the VA and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also submitted a statement on his own behalf stating the discharge would allow him to be closer to home and his mother.  There is no indication the request was made under coercion or duress.

2.  The applicant's record of indiscipline included one Article 15 and 175 days of AWOL.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable 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)                                         AR20100012702



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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