IN THE CASE OF:	  

		BOARD DATE:	  4 January 2011

		DOCKET NUMBER:  AR20100017766 


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 his undesirable discharge be upgraded to an honorable discharge.  

2.  He states:

* He was not properly informed about the discharge
* He requested a transfer, but he was denied
* He stayed out of trouble prior to this incident
* He was told he would be given a general discharge after 6 months

3.  He provides a copy of his DD Form 214 (Report of Separation from Active Duty) and two character references 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 enlisted in the Regular Army on 1 June 1972 for a period of 4 years. 

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice on two occasions for being absent without leave (AWOL) during the following periods:

* 20 February 1973 to 22 February 1973
* 31 May 1973 to 13 June 1973
* 25 June 1973 to 26 June 1973

4.  On 17 December 1973, charges were preferred against him for being AWOL from 30 July 1973 to 14 August 1973.

5.  He consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life.  He also acknowledged that he might be ineligible for many or all Army benefits administered by the Veterans Administration if an undesirable discharge was issued.  He submitted statements in his own behalf.  He stated he could not adjust to military life and would be better off in civilian life.  

6.  The separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 with the issuance of an Undesirable Discharge Certificate.

7.  He was discharged on 29 January 1974 after completing 1 year, 3 months, and 21 months of active military service with 128 days of lost time.  

8.  He provided character references from two acquaintances who gave him accolades for his dedication to his wife, country, and community.  

9.  His service record does not indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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 the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 (emphasis added), 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 service record is void of evidence which indicates he was not properly informed about the discharge.  He consulted with legal counsel during the chapter 10 discharge proceedings and he was advised of the effects of an undesirable discharge.  

2.  He contends he was told he would be given a general discharge after 6 months.  However, the U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change.  Changes may be warranted if it is determined that the characterization of service or the reason for discharge or both are improper or inequitable.

3.  The applicant's voluntary request for discharge 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.  The evidence of record does not indicate the request was made under coercion or duress.

4.  His service record shows he received two Article 15s and was AWOL for 128 days.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time also renders his service unsatisfactory. Therefore, he is not entitled to either a general or honorable discharge.

5.  The evidence of record does not indicate the actions taken in his case were in error or unjust, therefore, there is no basis for granting his request for an upgrade of his discharge.

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)                                         AR20100017766





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ABCMR Record of Proceedings (cont)                                         AR20100017766



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