IN THE CASE OF:	  

		BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20100019086 


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 he has matured and become a good citizen.  He also states the series of events that led to his discharge would not have happened today.  He has made an effort to improve his status as a person and he feels he has accomplished it.  Additionally, he states that he has total disability from the Social Security Administration as of 2009.

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 enlisted in the Regular Army on 22 April 1971 for a period of 3 years.  He was transferred to Fort Polk, Louisiana to undergo his basic combat training.

3.  On 8 June 1971, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 6 June to 8 June 1971.

4.  He was transferred to Fort Sill, Oklahoma on 28 June 1971 to undergo his advanced individual training (AIT) as a cannoneer.

5.  On 14 January 1972, NJP was imposed against him for being AWOL from 15 November to 12 December 1971 and for breaking restriction.

6.  He was transferred to Korea on 1 March 1972 and was assigned to an artillery battery in the 2d Infantry Division (Camp Casey).

7.  On 12 April 1972 NJP, was imposed against him for being absent from his place of duty on 11 April 1972.

8.  In September 1972, he was transferred to an artillery battery at Camp Stanley and, on 10 November 1972, NJP was imposed against him for being disrespectful in language and behavior towards a superior commissioned officer (Battery Commander).

9.  On 1 December 1972, NJP was imposed against him for being incapacitated to perform his duties due to overindulgence in intoxicating liquor.

10.  He departed Korea on 31 March 1973 and was transferred to Fort Hood, Texas for assignment to an artillery battery in the 1st Cavalry Division.

11.  On 6 August 1973, NJP was imposed against him for being AWOL from 25 June to 13 July 1973.

12.  On 23 August 1973, he was convicted by a summary court-martial of being AWOL from 23 July to 6 August 1973.  He was sentenced to a forfeiture of pay and restriction for 30 days.

13.  On 9 January 1974, he was convicted by a summary court-martial of being AWOL from 23 October to 31 October 1973 and from 12 November to 13 November 1973.  He was sentenced to a forfeiture of pay and restriction.

14.  On 12 April 1974, he was convicted by a summary court-martial of being disrespectful in language towards a superior noncommissioned officer and for wrongfully communicating a threat to kill him.  He was sentenced to a reduction to the pay grade of E-1, a forfeiture of pay and 30 days hard labor without confinement.

15.  The applicant again went AWOL on 18 April 1974 and remained absent in desertion until he was apprehended by civil authorities in Cleveland, Texas on 12 October 1974 and was returned to military control at Fort Hood, where charges were preferred against him for the AWOL offense.

16.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in 1984.  However, his records do contain a duly authenticated DD Form 214 (Report of Separation from Active Duty) which shows that he was discharged under other than honorable conditions on           30 December 1974, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served       3 years and 4 days of total active service and had 249 days of lost time due to AWOL.

17.  At the time of his discharge he was provided an information sheet explaining how to apply to the Army Discharge Review Board (ADRB) for a review of his discharge.  However, there is no evidence in the available records to show that he ever applied to the ADRB for an upgrade of his discharge within that board’s 15-year statute of limitations.

18.  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.

19.  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.
20.  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.  In the absence of evidence to the contrary it must be presumed that 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)                                         AR20100019086



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100019086



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1