BOARD DATE:	  18 November 2010

		DOCKET NUMBER:  AR20100013216 


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 that his undesirable discharge be upgraded to a general discharge under honorable conditions.

2.  He admits he broke the law under the Uniform Code of Military Justice (UCMJ).  He states he ran away from home to join the Army with three friends, but he was the only one to make it through the selection process.  He further states he asked the recruiter if he would be able to go home and straighten out his family life after completing basic combat training and his answer was yes, but he soon found out that was not the case.  He attests he was looking forward to a career in the military until he found out he could not go home and explain to his parents that he had joined the military.  He felt devastated and betrayed and took an action that he regrets to this day.

3.  He provides no additional evidence in support of his request.

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.  His record shows he enlisted in the Regular Army on 30 June 1975 and upon completion of initial entry training he was awarded military occupational specialty 13B (Field Artillery Crewman).  The highest rank/pay grade he attained while serving on active duty was private/E-2.  However, at the time of his discharge, he held the rank/pay grade of private/E-1.

3.  His record reveals a disciplinary history that includes acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ on two occasions for committing the following offenses in violation of the Article 86:

* departed his unit in an absent without leave (AWOL) status from 7 to 10 September 1975
* failed to go at the prescribed time to his appointed place of duty on 26 November 1975
* departed his unit in an AWOL status from 1 to 4 December 1975

4.  A DD Form 458 (Charge Sheet), dated 30 July 1976, shows he was charged with three specifications of being AWOL during the following periods:

* from 20 to 26 February 1976
* from 1 to 11 March 1976
* from 5 April to 22 July 1976

5.  On 3 August 1976, he 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.  Following counseling, he submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

6.  His chain of command recommended approval of his request and recommended that he be issued an undesirable discharge.

7.  On 20 August 1976, the separation authority approved his request and directed that he be reduced to the lowest enlisted grade and issued a DD Form 258A (Undesirable Discharge Certificate).

8.  On 27 August 1976, he was discharged under the provisions of chapter 10, Army Regulation 635-200, and issued a DD Form 258A.  His service was characterized as "under other than honorable conditions."  He completed 9 months and 18 days of creditable active military service.  He was credited with 133 days of lost time and 21 days of excess leave.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.

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.  The applicant's contention that his undesirable discharge should be upgraded to a general discharge under honorable conditions was carefully considered and determined to be without merit.

2.  His allegation that he was misinformed by his recruiter is noted but unsubstantiated.  His record reveals a disciplinary history that includes acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ on two occasions.

3.  His record also shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 
635-200 to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, he is not entitled to an upgrade of his discharge to a general discharge under honorable conditions.

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)                                         AR20100013216



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ABCMR Record of Proceedings (cont)                                         AR20100013216



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