IN THE CASE OF:	 

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100016207 


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, in effect, an upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states:

* he had almost 3 years of good service
* he made rank in a timely fashion and he was a good Soldier
* his wife left him and she went home and took one son away from him
* he was young and he got mixed up with the wrong people
* he was doing drugs and all of the things he should not have done
* he wishes he could take it all back; however, he can't
* he wanted to make a career out of the Army; however, his mistakes cost him his career
* he has paid for his mistakes again and again over the past years
* he believes he has been punished enough

3.  The applicant provides no additional documentation.

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 28 September 1972, after completing 9 months and 28 days of prior active service, the applicant reenlisted in the Regular Army for 3 years.  He had completed training as a radio relay and carrier attendant.  He was advanced through the ranks to specialist four/E-4 effective 27 September 1973.

3.  Nonjudicial punishment was imposed against the applicant on 26 January 1973 for failure to go to his appointed place of duty.

4.  Nonjudicial punishment was imposed against him on 21 February 1975 and 9 April 1975 for being absent without leave (AWOL) from 19 December 1974 until 19 February 1975 and from 26 March 1975 until 31 March 1975.

5.  On 10 June 1975, the applicant was notified that charges were pending against him for being AWOL from 2 May 1975 until 13 May 1975 and from 14 May 1975 until 4 June 1975.  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 could be discharged under other than honorable conditions 
* as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits
* he could be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge

6.  The appropriate authority approved the request for discharge on 27 June 1975 and directed the issuance of an Undesirable Discharge Certificate.  Accordingly, on 22 July 1975, the applicant was discharged under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  The DD Form 214 (Report of Separation from Active Duty) he received shows he completed 3 years, 4 months, and 3 days of total active service.  He had 101 days of lost time due to AWOL and/or confinement.

7.  A review of his records does not show he ever petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

9.  Paragraph 3-7a of Army Regulation 635-200 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.  Paragraph 3-7b of Army Regulation 635-200 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  However, the type of discharge he received was appropriate considering all of the fact of the case.

2.  His records show he had nonjudicial punishment imposed against him for being AWOL and he had approximately 101 days of lost time due to AWOL and confinement.  Considering his numerous acts of indiscipline, it does not appear that the character of his service is too harsh.

3.  His contentions regarding his desire to serve his country has been considered.  However, his contentions, neither individually nor in sum, are a basis for upgrading his discharge.  Considering the nature of his offenses, the undesirable discharge he received appropriately reflects his overall record of service.

4.  In view of the foregoing the applicant's request should be denied.

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)                                         AR20100016207



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ABCMR Record of Proceedings (cont)                                         AR20100016207



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