IN THE CASE OF:	  

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100019697 


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 (UD) be upgraded to an honorable discharge (HD).  He also requests that he be reimbursed back pay for the period of service he was incarcerated.  

2.  The applicant states, in effect, prior to enlisting in the military he was arrested for burglary and he was told the charge would be dropped if he enlisted in the military.  He served in the Army 3 years and he was put in the stockade twice.  When he escaped from the stockade, he was caught, returned, and forgotten about until he contacted the company commander.  This was cruel and unusual punishment.  He also states he was told that after 10 years his discharge would be upgraded to honorable.

3.  The applicant provides no supporting documentation except his personal statements.

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 9 January 1970.  He completed the training requirements and he was awarded military occupational specialty 94B (Cook).

3.  The applicant was absent without leave (AWOL) from 2 to 27 June 1970 and from 7 July to 2 October 1970, when he was apprehended by civilian authorities. He was confined from 3 to 8 October 1970, and he was returned to military control on 9 October 1970 and placed in pretrial confinement.

4.  On 10 November 1970, a special court-martial convicted the applicant of the above two periods of AWOL.  He was sentenced to confinement for 4 months, reduction to pay grade E-1, and a forfeiture of $88.00 pay for 4 months.

5.  The applicant was reported AWOL from the correctional custody facility, on 18 February 1971, and he remained absent through 2 September 1971.  Upon his return to military control he was placed in pretrial confinement.  

6.  On 22 September 1971, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.  He acknowledged he was guilty of the charges or of a lesser included charge and that if his request for discharge was accepted he could be furnished an Undesirable Discharge Certificate.  He acknowledged he understood that such a discharge would deprive him of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received a UD.

7.  The separation approval authority approved the applicant's discharge action under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with a UD.

8.  The applicant was discharged with a UD on 8 October 1971.  He had completed 6 months and 1 day of creditable active service with 449 days of lost time.


9.  Army Regulation 635-200 sets forth the policies and procedures for enlisted personnel separations.  The regulation in effect at the time provided the following:

	a.  Chapter 10 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 a UD.

   b.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   c.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge (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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided any evidence and the available record does not contain any evidence that shows his chain of command was unaware that he was incarcerated at any time.  

2.  The applicant's pay record is not available and the applicant provided no evidence to show he did not receive his proper pay or that he is entitled to any back pay.  Absent evidence to the contrary it must be presumed the applicant was correctly paid.

3.  There is no provision now nor has there ever been a provision for an automatic upgrade of the characterization of a Soldier's service.  Each case is reviewed on its own merits when a request is made.

4.  The applicant had more lost time than he had creditable service and his creditable service was not so meritorious as to outweigh the offenses that led to his discharge.  His service does not meet the standard expected of Army personnel for a GD or an HD.
5.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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)                                         AR20100019697



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ABCMR Record of Proceedings (cont)                                         AR20100019697



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