IN THE CASE OF:	  

		BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100013951 


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 served honorably except for a period of absence without leave (AWOL).  He was young and being discriminated against because of his race.  However, no one ever complained about his work.  He went AWOL because he was young and he no longer wanted to be exposed to the Army life.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge).

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 inducted into the Army of the United States on 9 December 1970 at the age of 21.  He completed training and was awarded military occupational specialty (MOS) 71H (Personnel Specialist).

3.  Upon completion of training he was assigned to Headquarters, U. S. Forces Support District, Hessen, Germany with further assignment to the 39th Finance Section, Hanau, Germany.  At different times he is shown to be serving in either MOS 71H or 73C (Finance Specialist).

4.  On 3 June 1972, the applicant departed AWOL and he was subsequently dropped from the rolls (DFR) of his unit.  He remained in a DFR status until 12 March 1973.

5.  The applicant's separation packet is not contained in the available records.

6.  There is no evidence of record and the applicant did not provide any evidence that shows he raised any discrimination issues through his chain of command, that he filed a discrimination complaint through his unit's equal opportunity representative, or that he raised any discrimination issue through other community support agencies.

7.  The DD Form 214 issued to the applicant indicates he was separated on temporary records under conditions other than honorable with issuance of an Undesirable Discharge Certificate.  The authority for discharge is listed as Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
10-1, with separation program number (SPN) 246 which indicated he was discharged for the good of the service - in lieu of trial by court-martial.  The DD Form 214 also shows he completed 1 year, 9 months, and 3 days of total active service with time lost from 3 June 1972 to 12 March 1973.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides:

	a.  in chapter 10 of the version in effect at the time 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 an individual who was discharged for the good of the Service.  

	b.  in paragraph 3-7a, 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;

	c.  in paragraph 3-7b, 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; and

9.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice (UCMJ).  A punitive discharge is authorized for offenses under Article 86, UCMJ, for periods of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The only negative item in the applicant's available record is his long period of AWOL; however, there is also no significant indication of service so meritorious as to mitigate his extended period of AWOL.  The applicant has not provided and the record does not contain any indication of discrimination or that his race had any bearing on determining his duty assignments or in the characterization of his discharge.

2.  Although the discharge documentation is not of record, the evidence of record shows that 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.  In connection with such a discharge, the applicant would have had to have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, the applicant would be required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  Included in the Chapter 10 

requirements at that time was a requirement that the applicant admitted guilt to the stipulated offenses under the UCMJ or lesser-included charges.  In the absence of information to the contrary, is it presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  As such, the applicant's characterization of his discharge is commensurate with the offense for which he requested discharge and is appropriate for his overall record of military service.

4.  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)                                         AR20100013951



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ABCMR Record of Proceedings (cont)                                         AR20100013951



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