IN THE CASE OF:	  

		BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100020048 


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.  

2.  He states:

* a characterization of service should not hinder a human being the rest their life
* he wants to put the past behind him 

3.  He provides copies of documents from his military records.  

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 was inducted into the Army of the United States on 25 April 1969.  

3.  His disciplinary history includes one summary court-martial and one special court-martial as follows:

	a.  Summary Court-Martial Order Number 17, dated 18 February 1970, for being absent without leave (AWOL) from 5 January 1970 to 3 February 1970 and 7 to 9 February 1970.  He was sentenced to confinement at hard labor for 30 days.

	b.  Special Court-Martial Order Number 762, dated 22 May 1970, for AWOL from 3 May 1970 to 12 May 1970.  He was sentenced to confinement at hard labor for 1 month and forfeiture of $25.00 pay per month for 4 months.

4.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date ETS) of his DA Form 20 (Enlisted Qualification Record) shows he was also AWOL from 17 June 1970 to 17 November 1970 and from 19 November 1970 to 28 December 1970.  

5.  The applicant’s discharge packet is not available for review.  However, his
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 27 January 1971 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial, with a character of service of under conditions other than honorable with issuance of a DD Form 258A (undesirable Discharge Certificate).  He completed 1 year, 1 month, and
9 days of total active service with 234 days of time lost due to AWOL and confinement.

6.  On 24 June 1977, the Army Discharge Review Board (ADRB) considered his request for an upgrade of his discharge under the Department of Defense Discharge Review Program (Special).  The ADRB determined he did not meet the primary or secondary criteria and 8 months of time lost out of 19 months service plus two courts-martial did not justify an upgrade.

7.  References:

	a.  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, 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.  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.  The applicant’s contentions are acknowledged; however, the evidence of record does not indicate the actions taken in this case were in error or unjust.  

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice (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.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  His service record shows he received one summary court-martial and one special court-martial.  In addition he had 234 days of time lost based on his periods of AWOL and confinement.  As a result, his service record was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20100020048



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ABCMR Record of Proceedings (cont)                                         AR20100020048



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