IN THE CASE OF:	  

		BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100013392 


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.

2.  The applicant states his discharge should be upgraded after 10 years.

3.  The applicant provides a Department of Veterans Affairs Form 4107 (Your Rights to Appeal Our Decision).

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.  On 22 December 1971, the applicant enlisted in the Regular Army for 3 years and completed training as a power equipment generator operator mechanic.

3.  The applicant had nonjudicial punishment imposed against him on five separate occasions between 7 April 1972 and 3 August 1973 for being absent without leave (AWOL) and for failure to go to his appointed place of duty.

4.  On 27 March 1974, the applicant was notified that charges were pending against him for being AWOL from 21 January 1974 until 20 March 1974.  He acknowledged receipt of the notification and after consulting with counsel he submitted a request for discharge under the provisions of Army Regulation 
635-200 (Enlisted Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial.  In his request for discharge the applicant acknowledged he understood the following:

* if his request for discharge were accepted he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* as a result of the issuance of such a discharge he may be deprived of many or all Army benefits
* he may be ineligible for many or all benefits administered by the Veterans Administration
* he may be deprived of his rights and benefits as a veteran under both Federal and State laws
* he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge

5.  The appropriate authority approved the request for discharge on 2 April 1974 and directed the issuance of an undesirable discharge.  On 10 June 1974, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 2 years, 3 months, and 6 days of total active service and he had approximately 73 days of lost time due to AWOL.  He was issued an Undesirable Discharge Certificate.

6.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows the following dates as periods of lost time:

* 4 March 1972 
* 10 October 1972 to 15 October 1972
* 8 October 1973 to 15 October 1973
* 21 January 1974 to 19 March 1974

7.  On 27 November 1974 and 10 February 1982, the Army Discharge Review Board denied the applicant's appeals for an upgrade of his discharge.

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

9.  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.

10.  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 has been noted.  However, it is not sufficiently mitigating to warrant the request relief.

2.  The type of discharge directed was appropriate considering all the facts of his case and based on his numerous acts of misconduct.

3.  His records show he had nonjudicial punishment imposed against him on five separate occasions for being AWOL and for failure to go to his appointed place of duty.  He had approximately 73 days of lost time as a result of being AWOL.

4.  Although he believes his discharge should be upgraded after 10 years, his service was not fully honorably nor did he serve under honorable conditions.  

The undesirable discharge he was issued appropriately reflects his overall record of service.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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 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)                                         AR20100013392



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100013392



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1