IN THE CASE OF:	  

		BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20100019853 


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 discharge to general.

2.  The applicant states, in effect, that his wife was undergoing a difficult first pregnancy and he used poor judgment in deciding that she needed him with her.  

3.  The applicant provides no additional argument or documents 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 Regular Army on 24 September 1971.  He completed training in military occupational specialty 64C (Motor Transport Operator).  The highest rank he achieved was private first class/E-3.
3.  Nonjudicial punishment under Article 15, Uniform Code of Military Justice was imposed against the applicant on:

   a.  13 March 1972, for being absent without leave (AWOL) from 29 February to 6 March 1972;
   
   b.  24 November 1972, for being derelict in the performance of his duties, in that he did not report to his appointed place of duty at the time prescribed on 
13 November 1972; and
   
   c.  27 March 1973, for being AWOL from 16 March to 21 March 1973.

4  On 15 February 1972, charges had been preferred against the applicant for being AWOL from 19 December 1972 to 13 February 1973.

5.  The applicant consulted with counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He indicated that he understood the elements or the charges against him and admitted that he was guilty of at least one offense for which a punitive discharge was authorized.  He also acknowledged that he understood he could receive an undesirable discharge (UD) and that he would be deprived of many or all Army benefits and that he might be ineligible for veteran's benefits administered by the Department of Veterans' Affairs (VA).  He stated that he understood that he could expect to encounter substantial prejudice in civilian life if he was issued a UD.  He indicated he had received legal advice but his request had been made voluntarily and that it reflected his own free will.

6.  In an undated letter, the applicant indicated he had only two choices, to divorce his wife and stay in the Army or to get out.  When they got married he already had a child by another woman.  He wanted his child with him for the holidays, but when his wife knew the child was coming she left him.  He was AWOL several days trying to find her to reconcile with her.  He felt he had to leave the Army but he pointed out that a UD would severely hurt his job prospects.  Therefore, he asked for a general discharge. 

7.  A mental status evaluation found the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  The examiner, a psychiatrist, formed the impression that the applicant had the mental capacity to understand and participate in the proceedings, he was mentally responsible, and he met the requirements for retention.  The applicant was cleared for administrative action deemed appropriate by his chain of command.  A physical examination found him fit for duty or separation.

8.  The applicant's chain of command recommended approval of his request with a UD.

9.  The commanding general approved the applicant's request and directed that he be issued a UD.  On 5 April 1973, the applicant was separated with a UD under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

10.  In June 1974, the applicant asked the Army Discharge Review Board (ADRB) to upgrade his discharge.  He noted that he and his wife had experienced lots of problems.  However, they were no longer together and he wanted to return to active duty.  On 27 February 1975, the ADRB denied the applicant's request to upgrade his discharge.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel:

   a.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a UD was normally considered appropriate at the time.

   b.  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 states his wife was undergoing a difficult first pregnancy and he used poor judgment in deciding that she needed him with her.  That is not how he described his family problems at the time he requested discharge.

2.  Even if the applicant was experiencing personal problems, he had many legitimate avenues he could have used to get assistance to include his chain of command and the chaplain without committing the offense for which he was discharged.

3.  The applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  His character of service is commensurate with his overall record of military service.  He has not submitted sufficiently mitigating evidence for relief.

4.  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)                                         AR20100019853



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ABCMR Record of Proceedings (cont)                                         AR20100019853



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