IN THE CASE OF:	  

		BOARD DATE:	  3 February 2011

		DOCKET NUMBER:  AR20100019694 


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 upgrade of his discharge under other than honorable conditions to an honorable discharge (HD).

2.  The applicant states he requested a compassionate reassignment due to the death of his father, which left his mother alone.  His command suggested a more expedient method which involved a general discharge (GD).  He was informed by his command that his DD Form 214 (Report of Separation from Active Duty) would be mailed to him reflecting a GD.

3.  The applicant provides no documentation in support of his request.

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 New York Army National Guard (NYARNG) for a period of 6 years on 2 December 1972.  He entered active duty for training (ADT) on 30 March 1973, was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman), and was released from active duty to return to the NYARNG.

3.  On 15 December 1973, his company commander gave him notice of unsatisfactory performance by reason of being absent without leave (AWOL) for a training assembly on 15 December 1973.  His commander advised him that:

* accrual of five unsatisfactory performances would result in him being processed for an involuntary order to active duty for 24 months
* this was his 15th unsatisfactory performance

4.  The record includes an unsigned letter, dated 13 March 1974, showing:

* he had 19 unsatisfactory performances
* he had been reported for involuntary order to active duty for 20 months
* he was required to attend unit assemblies while awaiting entry on active duty
* the effective date of the order to active duty would be approximately 30 days from the date of the letter

5.  On 29 April 1974, the Assistant Adjutant General, NYARNG, informed him that his office had been requested to order him to active duty for 24 months, less any active duty or ADT time previously served, and informed him of the procedures for appealing the order to active duty.

6.  Letter Orders E-05-065, Headquarters, First U.S. Army, dated 10 May 1974, ordered him to active duty for a period of 20 months effective 17 June 1974.

7.  A DD Form 458 (Charge Sheet), dated 10 March 1975, shows he was charged with being AWOL from on or about 28 November 1974 to on or about 5 March 1975.

8.  On 18 March 1975, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  Prior to submitting his request, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an undesirable discharge, the procedures and rights available to him, and of the substantial prejudice he might encounter in civilian life because of an undesirable discharge.

9.  In his voluntary request for discharge, he indicated he understood that by requesting discharge he was admitting guilt to the charge against him or lesser included offenses and that the imposition of a bad conduct or dishonorable discharge was authorized.  He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

10.  On 26 March 1975, the separation authority approved his request for discharge and directed issuance of a DD Form 258A (Undesirable Discharge Certificate).  On 10 April 1975, he was discharged accordingly and his service was characterized as under conditions other than honorable.  He completed 6 months and 27 days of total active military service with 210 days of lost time.

11.  The record is void of documentation showing he requested a compassionate reassignment or that he was promised a GD.

12.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 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, the 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 would normally be furnished to an individual who was discharged for the good of the service.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.

15.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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 HD.  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 does not support the applicant's request for upgrade of his undesirable discharge.

2.  He 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.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  His record of service shows a history of unsatisfactory participation in the NYARNG that led to his involuntary order to active duty.  Once on active duty, the record shows he continued his pattern of unsatisfactory participation by being AWOL.  His active duty service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an HD or a GD.

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 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)                                         AR20100019694



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ABCMR Record of Proceedings (cont)                                         AR20100019694



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