IN THE CASE OF:	  

		BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20100020223 


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 (UD) to a general discharge.

2.  The applicant states:

	a.  he enjoyed the Army and liked being a Soldier;

	b.  during his military service:

* his wife did not like the Army and they had serious marital problems
* his father had emphysema, hurt his back on the job, and he was unable to work
* his mother had hip problems and suffered from depression trying to figure out how to make ends meet
* he requested a compassionate, but it was denied
* he made the wrong decision and was put out of the Army; and

	c.  he takes full responsibility for his actions and hopes that he has proven he is worthy of receiving an upgrade of his UD.

3.  The applicant provides:

* a self-authored statement, dated 21 July 2010
* two character reference statements, dated 27 and 28 July 2010, respectively
* his DD Form 214 (Report of Separation from Active Duty)
* a Headquarters, 101st Airborne Division, Fort Campbell, KY letter, subject:  Narrative Reason and Authority for Separation, dated 9 September 1976
* his discharge order, dated 3 September 1976
* his UD Certificate

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's military record shows he enlisted in the Regular Army (RA) on 22 July 1974.  He was trained in and awarded military occupational specialty 64C (Motor Transport Operator).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was advanced to the rank/grade of specialist four (SP4)/E-4 on 15 January 1976 and this was the highest grade he held while serving on active duty.  Item 21 (Time Lost Under Section 972, Title 10, U.S. Code) shows he was reported absent without leave (AWOL) from 28 April through 31 May 1976.

4.  On 1 June 1976, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL.

5.  On 3 June 1976, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested 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.


6.  In his request for discharge, the applicant acknowledged he understood 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 (VA) and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated that he understood he could face substantial prejudice in civilian life if he were issued a UD and submitted a statement on his own behalf.

7.  In the applicant’s statement he indicated:

	a.  since he joined the Army he had family problems;

	b.  his wife threatened if he did not get out of the Army he would lose his family;

	c.  he did not like the Army and couldn’t lose his family because of it; and

	d.  he sincerely believed it was best for the Army’s benefit as well as his own if he were discharged.

8.  On 28 June 1976, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the applicant's reduction to the lowest enlisted grade and issuance of a UD Certificate.  On 9 September 1976, the applicant was discharged accordingly.

9.  The applicant's DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10.  It also shows he completed 2 years and 15 days of total active service with 34 days of time lost.

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

11.  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.  A UD Certificate would normally be furnished an individual who was discharged for the good of the Service.

12.  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 evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL and he accrued 34 days of time lost.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  The applicant’s offenses rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

3.  In view of the foregoing, the applicant’s request should be denied.

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)                                         AR20100020223



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ABCMR Record of Proceedings (cont)                                         AR20100020223



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