IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100017297 


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 he was young, immature and not ready for the Army; therefore, he made a decision that led to his discharge.  

3.  The applicant provides no additional documentation 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 records show he enlisted in the Regular Army on 9 May 1974.  He completed initial entry training, was awarded the military occupational specialty of armor crewman, and he was advanced to pay grade
E-2.

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 7 August 1974 for failing to go at the time prescribed to his appointed place of duty.

4.  On 25 March 1975, he was charged with one specification of being absent without leave (AWOL) during the period 16 January to 25 March 1975 and wrongfully having in his possession one (1) ounce, more or less, of marijuana.

5.  On 26 March 1975, he 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 court-martial.  He acknowledged that he 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.  He further acknowledged by submitting his request for discharge he was admitting to being guilty of the charges against him or of a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge.

6.  In conjunction with his request, he consulted with counsel and was advised of his rights.  He acknowledged he understood if his discharge request was approved, he might be discharged under conditions other than honorable.  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 Veteran's Administration (now known as the Department of Veterans Affairs), and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he may expect to encounter substantial prejudice in civilian life by reason of this discharge.

7.  On 16 April 1975, the separation authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed that he be issued an Undesirable Discharge Certificate.

8.  On 1 July 1975, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.  The applicant was 18 years of age at that time.  The DD Form 214 he was issued at that time shows he had completed a total of 11 months and 16 days of active service with 68 days of lost time.

9.  On 7 August 1981, the Army Discharge Review Board denied the applicant's request for an upgrade of his undesirable discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service.  At the time of the applicant's separation, an under other than honorable conditions discharge was appropriate.

11.  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 accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.  He was also charged with being AWOL and wrongfully having marijuana in his possession.

2.  He voluntarily requested discharge under the provisions of Army Regulation
635-200, chapter 10, for the good of the service - in lieu of court-martial.  In doing so, he admitted guilt to the charge or of a lesser included offense which authorized the imposition of a bad conduct or dishonorable discharge.  This serious misconduct warranted an Undesirable Discharge Certificate.

3.  Records show he was 18 years of age at the time of his discharge.  There is no evidence that he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Furthermore, he demonstrated the capacity for honorable service by completion of basic and advanced initial training without a serious offense.

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)                                         AR20100017297



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ABCMR Record of Proceedings (cont)                                         AR20100017297



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