IN THE CASE OF:	  

		BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100020540 


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.  The applicant states he was told as a group that his discharge would be upgraded after 7 years.  He adds that he was 17 years of age when he enlisted and served well during the first half of his enlistment.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty).

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 records show he enlisted in the Regular Army on 31 October 1973.  He completed initial entry training, was awarded the military occupational specialty of field wireman, and was promoted to pay grade E-4.

3.  Records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions during the period 24 October 1974 to 3 June 1975 for being absent without leave (AWOL) and for willfully disobeying a lawful order.

4.  A DD Form 458 (Charge Sheet) contained in his records shows charges were preferred against him on 29 March 1976 for being AWOL from 4 June 1975 to 3 November 1975 and from 4 November 1975 to 23 March 1976.

5.  On 31 March 1976, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he was making the request of his own free will.  He further acknowledged he understood that by requesting a discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he had consulted with counsel who fully advised him of the nature of his rights under the UCMJ.  He further acknowledged he understood that if his discharge request were approved, he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged he had been advised and understood the possible effects of an undesirable discharge and that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He chose not to submit a statement in his own behalf.

6.  On 5 April 1976, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed that he be furnished an Undesirable Discharge Certificate.

7.  On 15 April 1976, he was discharged.  The DD Form 214 he was issued shows he completed 1 year, 7 months, and 15 days of total active service with 302 days of lost time.  He was 19 years of age at the time of his discharge.

8.  On 19 April 1979, the Army Discharge Review Board denied his request for an upgrade of his undesirable discharge.
9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service.  At the time of the applicant's separation, an Undesirable Discharge Certificate was normally furnished to an individual who was discharged for the good of the service.

10.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  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 records show he received NJP for being AWOL and for willfully disobeying a lawful order.  He was also charged with being AWOL for two extended periods of time.  His records show he had a total of 302 days of lost time due to being AWOL.

2.  He voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the charge or of a lesser included offense which authorized the imposition of a bad conduct or dishonorable discharge.  Based on his misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or general discharge.

3.  Records show the applicant was 19 years of age at the time of his discharge.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Furthermore, he demonstrated the capacity for honorable service by completion of basic training and about 1 year of service without an offense.

4.  The ABCMR does not upgrade discharges based solely on the passage of time.

5.  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 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)                                         AR20100020540



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ABCMR Record of Proceedings (cont)                                         AR20100020540



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