IN THE CASE OF:	  

		BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100019896 


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 undesirable discharge to a general discharge.

2.  The applicant states he is requesting upgrade of his discharge based on his record of service.

3.  The applicant provides a copy of 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 enlisted in the Regular Army on 1 December 1970 for a period of 3 years.  Upon completion of training he was awarded military occupational specialty 71B (Clerk Typist).  The highest rank/grade he attained was private (PV2)/E-2 on 10 April 1971.

3.  On 15 April 1971, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 5 April to 14 April 1971.

4.  Headquarters Command, U.S. Army Primary Helicopter Center/School and Fort Wolters, TX, Special Court-Martial Order Number 1, dated 26 January 1972, shows that at a special-court martial the applicant pled guilty and was found guilty of the charge and specification of being AWOL from 2 November to
5 December 1971.

   a.  He was sentenced to 65 days of hard labor without confinement and
30 days of restriction within the limits of Fort Wolters.

   b.  On 26 January 1972, the convening authority approved only so much of the sentence that provided for 65 days of extra duty and 30 days of restriction within the limits of Fort Wolters, and ordered the sentence executed.

5.  On 11 May 1973, court-martial charges were preferred against the applicant for violation of Article 86, UCMJ, for being AWOL from 15 July 1972 to 25 April 1973.

6.  On 11 May 1973, the applicant consulted with legal counsel and he voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.

   a.  He was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.


   b.  He was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant submitted a statement that shows he submitted two applications for a hardship discharge and both requests were disapproved.  He added that he had a wife (who was then seven months pregnant) and two children who were living in Chicago, IL.  He also stated that his wife and children were suffering financial difficulties, which required him to be home with them.  He added that he declined the opportunity to submit another application for a hardship discharge because the previous two requests were disapproved and cost him over $600.00. 

7.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with an Undesirable Discharge Certificate.  The battalion commander noted that in an interview, the applicant acknowledged that en route to the Republic of Vietnam, he went AWOL.

8.  On 29 May 1973, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate.

9.  The applicant's DD Form 214 shows he was discharged on 5 June 1973 in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of a court-martial, with service characterized as under conditions other than honorable.  At the time he had completed 1 year, 6 months, and
28 days of net active service.

   a.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the Expert Marksmanship Qualification Badge with (M-16) Rifle Bar and the National Defense Service Medal.

   b.  Item 30 (Remarks) shows he had 337 days of time lost under Title 10, U.S. Code, section 972, from 6 through 7 July 1971; 16 through 24 September 1971;
2 November through 4 December 1971; 15 July 1972 through 24 April 1973; and 28 May through 5 June 1973.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 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 an individual who was discharged for the good of the Service.  

   b.  Chapter 3, paragraph 7b, provides that a general discharge 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's record of service was carefully considered.

   a.  The applicant completed training and he was awarded MOS 71B.

   b.  He was awarded the National Defense Service Medal and the Expert Marksmanship Qualification Badge with (M-16) Rifle Bar.

   c.  Records show the applicant had 337 days of time lost (i.e., more than
11 months) and he completed less than 19 months of his 3-year enlistment obligation.

   d.  In view of the foregoing, it is clear that the quality of the applicant's service during the period of service under review was not satisfactory and he is not entitled to a general discharge.

2.  The applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-


martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offense that led to his discharge far outweighs his overall record.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate and equitable.

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)                                         AR20100019896



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ABCMR Record of Proceedings (cont)                                         AR20100019896



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