IN THE CASE OF:	  

		BOARD DATE:	    7 December 2010

		DOCKET NUMBER:  AR20100017315 


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 his discharge should be changed due to the circumstances at the time of his service.  He states he is not asking for benefits or any compensation and after 37 years of humiliation and shame he asks the Board to consider changing the status of his discharge.  His father was ill and his wife was pregnant.  In desperation he went absent without leave (AWOL).  His father died and he got his wife settled with his mother and turned himself in to his unit.

3.  The applicant provides a copy of his father’s obituary. 

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 enlisted in the Regular Army on 16 June 1972 for a period of
4 years.  The applicant was sent to Fort Jackson, SC to attend basic combat training (BCT); however, he went AWOL twice and he did not complete BCT.

3.  On 15 August 1972, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 28 July 1972 to 13 August 1972.

4.  On 28 August 1972, he again went AWOL and he remained absent in a deserter status until 19 January 1973.  He returned to military control at Fort Jackson, SC where charges were preferred against him for his AWOL offenses.

5.  On 22 January 1973, after consulting with counsel, the applicant submitted a request for 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.  In his request he indicated that he was making the request of his own free will, without coercion from anyone, and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and furnished an Undesirable Discharge Certificate, and that he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf; however, during an interview with his battalion commander, he expressed that he could not adjust to the Army and he had problems at home which he could not attend to while in the Army.  Therefore, he would do what it would take to get out.

6.  On 8 February 1973, the separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service - in lieu of court-martial, with his service characterized as under other than honorable conditions.  At the time he had completed a total of 2 months and 21 days of net active service.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued also shows he had lost time from 28 July 1972 to 13 August 1972 and
28 August 1972 to 18 January 1973. 


7.  There is no indication in the available records to show he ever applied to 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.

	a.  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, under other than honorable conditions, would normally be furnished to an individual who was discharged for the good of the service.

	b.  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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

2.  The applicant’s battalion commander interviewed the applicant before making his recommendation to the separation authority on the applicant’s request for discharge.  During the interview the applicant stated he could not adjust to the Army and he had problems at home which he could not attend to while in the Army.  He was fully aware of the meaning of an Undesirable Discharge, but if that’s what it took to get out, that’s what he wanted.


3.  The applicant’s contentions that his discharge should be changed due to the circumstance at the time of his service have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to his extensive AWOL absences.

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)                                         AR20100017315



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ABCMR Record of Proceedings (cont)                                         AR20100017315



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