IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100017942 


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 and not smart and he needs his discharge upgraded to qualify for Department of Veterans Affairs (VA) benefits.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 record shows he enlisted in the Regular Army on 28 September 1969 for a period of 2 years.  He was almost 20 years of age at the time of his enlistment.  He was subsequently awarded military occupational specialty 94B (Cook).

3.  On 27 May 1970, he was convicted by a summary court-martial of being absent without leave (AWOL) from on or about 16 March 1970 to 6 May 1970.

4.  On 18 July 1970, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 17 June 1970 to 14 July 1970.

5.  On 10 September 1970, he was convicted by a special court-martial of being AWOL from on or about 12 August 1970 to 26 August 1970.

6.  On 11 February 1971, he was convicted by a special court-martial of being AWOL from on or about 17 November 1970 to 26 December 1970.

7.  On 10 September 1971, he was reported AWOL, having escaped from confinement.  He was apprehended by civil authorities and he was returned to military control on 19 April 1972.

8.  On 25 April 1972, court-martial charges were preferred against him for being AWOL from on or about 10 September 1971 to 19 April 1972.  On 28 April 1972, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

9.  In his request for discharge, he acknowledged he understood by requesting discharge he understood if the discharge request was approved, he may be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood that he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and could be deprived of his rights and benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life. 

10.  On 13 April 1973, court-martial charges were preferred against him for being AWOL from on or about 10 September 1971 to 19 April 1972 and from on or about 15 May 1972 to 18 January 1973.

11.  On an unknown date, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of a court-martial and directed the applicant's reduction to the lowest enlisted grade and issuance of an Undesirable Discharge Certificate.  On 18 May 1973, he was accordingly discharged.  The DD Form 214 he was issued shows he completed  1 year, 8 months, and 17 days of total active service with 248 days of time lost prior to and 456 days of time lost subsequent to his expiration of term of service date.

12.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

14.  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 evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary 


requests for discharge in lieu of trial by court-martial.  He voluntarily requested discharge from the Army in lieu of trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 

2.  His record of service shows he demonstrated that he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the summary court-martial and two special court-martial convictions he received for AWOL, and the NJP he received under the provisions of Article 15, UCMJ, for being AWOL.  On 10 September 1971 and 15 May 1972, he again went AWOL which was the basis for his voluntary discharge.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

4.  Records show that he was between 20 and 23 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.

6. 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)                                         AR20100017942



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ABCMR Record of Proceedings (cont)                                         AR20100017942



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