IN THE CASE OF:	  

		BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100015635 


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 his discharge be upgraded to general, under honorable conditions.

2.  The applicant states he does not believe that being absent without leave (AWOL) deserves a discharge under conditions other than honorable and he just recently became aware of his inability to qualify for veteran’s benefits because of his discharge.

3.  The applicant provided a copy of his DD Form 214 (Report of Separation from Active Duty). 

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 record shows he enlisted in the Regular Army on 16 March 1973.  He completed the required training and was awarded military occupational specialty 13B (Field Artillery Crewman).  He was assigned to the 3rd Battalion, 4th Air Defense Artillery, Fort Bragg, NC.

3.  His records also show he was awarded the National Defense Service Medal and the Parachutist Badge. 

4.  On 8 February 1974, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to report for duty with his unit on 14 January 1974.  His punishment consisted of forfeiture of $50.00 pay for one month, 14 days of extra duty, and 14 days of restriction.  He did not appeal this punishment. 

5.  On 11 March 1974, he received NJP for being asleep in the gate guard shack in the motor pool rather than walking his post as instructed.  His punishment consisted of forfeiture of $75.00 pay for one month, 14 days of extra duty, and 14 days of restriction.  He did not appeal this punishment. 

6.  On 23 March 1974, he departed his unit in an AWOL status and, on 25 April 1974, he was dropped from the Army rolls.  He returned to military control on 3 July 1974.  Subsequent to his return, court-martial charges were preferred against him for this period of AWOL.  

7.  On 23 July 1974, he 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, the maximum permissible punishment authorized under the UCMJ, 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 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.

8.  In his request for discharge, the applicant indicated he was making this request of his own free will and he had not been subjected to any coercion and he indicated that he had been advised of the implications that were attached to his request.  He also indicated he understood by requesting 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 discharge.  He further acknowledged he understood that if the discharge request was 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 law.  He also submitted a statement in his own behalf, explaining that he did not feel he could adjust to military life and that’s why he went AWOL. 

9.  On 12 and 14 August 1974, his immediate and intermediate commanders recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate. 

10.  On 3 September 1974, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed he be issued an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 10 September 1974 in the pay grade of E-1.

11.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of a court-martial with issuance of a DD Form 258A (Undesirable Discharge Certificate).  He had completed 1 year, 2 months, and 16 days of active service with 98 days of lost time.

12.  On 1 August 1977, the Army Discharge Review Board advised him that after careful consideration of his military records and all other available evidence, it had determined that he had been properly discharged and therefore his petition for an upgrade of his discharge was denied.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  At the time, an undesirable discharge was normally issued.

14.  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 records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant 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.  Further, his discharge accurately reflects his overall record of service.

2.  His records show he had three violations under the UCMJ for failing to report for duty, sleeping on guard, and AWOL.  He had 98 days of lost time.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20100015635



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ABCMR Record of Proceedings (cont)                                         AR20100015635



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