IN THE CASE OF:	  

		BOARD DATE:	  6 January 2011

		DOCKET NUMBER:  AR20100017746 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states that his discharge was supposed to be upgraded within 6 months of his discharge and he is at the age where he is not working and needs insurance.

3.  The applicant provides no additional documents with 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 was born on 8 February 1947 and was inducted in Richmond, Virginia on 21 October 1968.  He completed his basic training at Fort Benning, Georgia and his advanced individual training at Fort Knox, Kentucky and received orders transferring him to Vietnam with a report date to Oakland, California of 4 April 1969.  The applicant did not report as ordered and was reported as being absent without leave (AWOL).  He remained absent until 23 April 1969 when he returned to military control at Oakland and nonjudicial punishment (NJP) was imposed against him for the AWOL offense on 24 April 1969.

3.  He was transferred to Vietnam on 26 April 1969, and on 9 November 1969 NJP was imposed against him for disobeying a lawful order and violating a lawful regulation.  He departed Vietnam on 6 April 1970 and was transferred to Fort Sill, Oklahoma.

4.  On 11 December 1970, he was convicted by a special court-martial of being AWOL from 7 May to 28 October 1970 and 14 November to 27 November 1970.

5.  The applicant again went AWOL on 18 February 1971 and remained absent until he was returned to military control at Fort Dix, New Jersey on 3 April 1972 and charges were preferred against him for the AWOL offense.

6.  On 18 April 1972, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by 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 acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further stated that he had been advised not to accept an undesirable discharge in the expectation that it would later be changed to a general or honorable discharge because the likelihood of that ever occurring was extremely remote.  He also elected not to submit a statement in his own behalf.

7.  On 23 May 1972, the appropriate authority (a major general) approved his request and directed that he be furnished an Undesirable Discharge Certificate.

8.  Accordingly, he was discharged on 5 June 1972, under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 10 months and 18 days of total active service and had 617 days of lost time due to AWOL.  

9.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must indicate that they are submitting the request of their own free will, without coercion from anyone and that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions was then and still is normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a, 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.

12.  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 courtmartial, was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  

4.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the extensive length of his repeated absences, his overall record of service, and the absence of mitigating circumstances.  His service simply does not rise to the level of even a general discharge.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20100017746





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ABCMR Record of Proceedings (cont)                                         AR20100017746



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