BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100016429 


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 to a general discharge. 

2.  The applicant states, "Shouldn't it be a General Discharge?" 

3.  The applicant provides no additional documentary evidence in support of this 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 was inducted into the Army on 17 February 1971.  He did not complete initial entry training and was not awarded a military occupational specialty.  The highest grade he held was pay grade E-1.
3.  On 30 December 1971, court-martial charges were preferred against the applicant for being absent without leave (AWOL) during the period 5 May to 1 November 1971.

4.  On 3 January 1972, he voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  He was advised of the basis of his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, and the rights available to him.  He acknowledged he was making the request of his own free will and was not subjected to coercion with respect to his request for discharge and that he had been advised of the implications attached to his request.

5.  He consulted with counsel prior to completing his request for discharge and was advised fully on the matter.  He acknowledged he understood if his discharge request was approved, he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He chose not to submit a statement in his own behalf.

6.  On 14 January 1972, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 
635-200, and directed that he be issued an Undesirable Discharge Certificate.

7.  On 19 January 1972, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at that time shows he completed a total of 5 months and 2 days of active military service.  Item 26a (Non-Pay Periods Time Lost) of his DD Form 214 shows 5 May 71 - 31 Oct 71.

8.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that an individual, whose conduct rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable 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.  An Undesirable Discharge Certificate was normally issued at the time.

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 records show he was charged with being AWOL during the period 5 May 1971 to 31 October 1971.  In order to be discharged under chapter 10 he would have voluntarily requested discharge in lieu of a trial by court-martial.

2.  An undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service at the time.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

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)                                         AR20100016429



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100016429



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1