IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100012846 


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 under other than honorable conditions.

2.  The applicant states he was only 17 years of age when he met his first intimate girlfriend.  She asked him to go home with her and he did.  He returned to Fort Dix and he was placed in a holding company.  Nobody moved on, so he went home to be with her.  He was picked up by Federal authorities and he was sent back to Fort Dix and placed in a stockade which had riots at the time and seemed to be very dangerous.  As he was afraid of harm and after consulting with his legal representative, he decided it was best for him to accept a discharge under other than honorable conditions.  He has spent the past 40 years in shame and disappointment.  As he reflects on the past, he would like this shame removed from his records.

3.  The applicant provides his DD Form 214 (Armed Forces of the United Sates Report of Transfer or Discharge) and six letters of support or character references.

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 was born on 2 October 1952 and enlisted in the Regular Army at 17 years of age on 6 October 1969.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 63A (Mechanical Maintenance Helper).  The highest rank/grade he attained during his military service was private/E-2.

3.  The applicant's records show he was awarded the National Defense Service Medal.

4.  On 6 April 1970, he departed his Fort Dix, NJ, unit in an absent without leave (AWOL) status and on 6 May 1970 he was dropped from the Army rolls.  He returned to military control on 15 September 1970 and he was assigned to the Special Processing Detachment, Fort Dix.

5.  On 24 September 1970, he again departed his unit in an AWOL status and he was subsequently dropped from the Army rolls.  He was apprehended by Federal authorities and returned to military control on 6 April 1971.

6.  On 23 April 1971, court-martial charges were preferred against him for two specifications of AWOL from 6 April 1970 to 15 September 1970 and from 24 September 1970 to 6 April 1971.

7.  He subsequently 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 or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice, 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 for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

8.  In his request for discharge he indicated he was making the request of his own free will and had not been subjected to any coercion by anyone.  He also acknowledged he understood that if his discharge request were approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further understood that if such discharge were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  In connection with his request, he submitted a statement wherein he stated he did not get along with other people and found it difficult getting along.  He admitted he was jumpy and found it almost impossible to sit and wait for things.  He indicated he had no desire whatsoever to return to duty and that it would be to the Army's benefit if he were discharged.

10.  On 27 and 29 April 1971, the applicant's intermediate and senior commanders recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.

11.  On 6 May 1971, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that be reduced to the lowest enlisted grade and that he receive an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 20 May 1971.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with a character of service of under other than honorable conditions.  This form confirms he completed 7 months and 6 days of creditable active service and he had 356 days of lost time.

12.  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.

13.  He submitted six character reference letters or letters of support wherein the authors describe him as an individual with high moral character and excellent work ethics.  He generously donates his time to assist others and he is devoted to the church and to serving God.

14.  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, 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 to an individual who was discharged for the good of the service.

15.  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.

16.  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.  The applicant's record shows he was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 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.  His narrative reason for discharge is appropriate based on the facts of the case and his discharge accurately reflects his overall record of service.

3.  While it is acknowledged that he was 17 years of age at the time he enlisted, there is no indication he was any less mature than other Soldiers of the same age who successfully completed their military service.

4.  The various character reference letters he submitted were noted.  However, they are not sufficiently mitigating to change the character of his service.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general 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)                                         AR20100012846



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ABCMR Record of Proceedings (cont)                                         AR20100012846



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