IN THE CASE OF:	  

		BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100015672 


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 that the charges pending against him were not serious and he only received one Article 15.

3.  The applicant provides no additional documents in support of his application. 

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 military personnel record shows he enlisted in the Regular Army on 1 November 1972.  He did not complete basic combat or advanced individual training.  The highest rank/grade he attained was private (PV2)/E-2.
3.  Between May and September 1973, the applicant received three nonjudicial punishments under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for two incidents of being absent without leave (AWOL) from 30 April to 15 May 1973, from 13 to 21 July 1973, and for one incident of failing to go at the time prescribed to his appointed place of duty.  His imposed punishment consisted of forfeitures and extra duties.

4.  On 26 March 1974, court-martial charges were preferred against the applicant for being AWOL from 30 January 1974 to 13 March 1974.

5.  On 3 April 1974, the applicant was convicted by a summary court-martial (SCM) of being AWOL from 30 January 1974 to 13 March 1974.  He was sentenced to reduction to private (PV1)/E-1, to perform hard labor without confinement for 45 days, and to forfeiture of $217.00 pay for one month.

6.  On 4 June 1974, the applicant was convicted by an SCM of being AWOL from 8 April 1974 to 7 May 1974.  He was sentenced to a forfeiture of $217.00 pay for one month. 

7.  On an unknown date, the applicant voluntarily 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.  The applicant acknowledged he understood the elements of the offense he was charged with and he was making the request of his own free will, he was afforded the opportunity to speak with counsel prior to making this request, and he was advised he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.

8.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge and he would be deprived of many or all Army benefits, he may be ineligible for many or all Veterans Administration (VA) benefits, he understood the procedures and rights available to him, and he did not submit a statement in his own behalf.

9.  On 1 August 1974, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed the applicant be furnished an Undesirable Discharge Certificate.

10.  On 21 August 1974, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of court-martial with issuance of an Undesirable Discharge Certificate.  He had completed 1 year, 4 months, and 24 days of total active service with 150 days of time lost due to AWOL and confinement.
11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within it 15 year statute of limitations.

12.  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 an individual who was discharged for the good of the Service.

13.  Army Regulation 635-200, paragraph 3-7b, states 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 was carefully considered; however, there is no evidence and the applicant has not provided any evidence that shows the discharge he received was inequitable or unjust.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  His undesirable discharge was administratively correct and in conformance with applicable regulations.  There is no indication that his request was made under coercion, duress, or that his rights were violated in any way.  Further, the applicant acknowledged in a signed statement that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and his discharge accurately reflects his overall record of short and undistinguished service.  This included much more evidence of misconduct than one Article 15.

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)                                         AR20100015672



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ABCMR Record of Proceedings (cont)                                         AR20100015672



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