IN THE CASE OF:	  

		BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100020862 


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 undesirable discharge (UD) to a general discharge.

2.  He provides:

* DD Form 214 (Report of Separation from Active Duty)
* Four letters of recommendation

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, an upgrade of the applicant's discharge.

2.  Counsel states, in effect, the issues raised by the applicant amply advance the applicant's contentions and substantially reflect the probative facts needed for equitable review.  According, they rest this case on the evidence of record.  

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 was inducted into the Army of the United States on 24 September 1969.  He completed training and he was awarded military occupational specialty 94D, Baker.

3.  He accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for the following:

* 12 June 1970, for willfully disobeying a lawful order on 12 June 1970
* 15 June 1970, for failing to go to his appointed place of duty on 1 & 3 June 1970
* 16 June 1970, for willfully disobeying a lawful order on 13 & 14 June 1970
* 16 July 1970, for failing to go to his appointed place of duty on 6 July 1970
* 4 August 1970, for absenting himself from his unit from 20 to 24 July 1970

4.  He was reported absent without leave (AWOL) on 20 October 1970 and dropped from the rolls on 12 December 1970.  He was apprehended by civilian authorities and returned to military control on 27 December 1975.

5.  On 16 January 1976, a DD Form 458 (Charge Sheet) was prepared by the Commander, U.S. Army Personnel Control Facility, Fort George G. Meade, MD.  He was charged with one specification of being AWOL from 20 October 1970 through 27 December 1975.

6.  On 16 January 1976, after consulting with 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 court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be discharged under other than honorable conditions and furnished an UD Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected to submit a statement in his own behalf.

7.  In his statement, dated January 1976, he stated that he wanted to go home and that's why he went AWOL and started drinking heavy.  His first sergeant had 
requested orders to send him to Vietnam to get rid of him, so he went home and stayed.  He did not wish to remain in the Army and would accept an UD to get out of the Army.  

8.  On 11 February 1976, the applicant's unit commander recommended the applicant be separated from Army Regulation 635-200, chapter 10, for the good of the service, with UD Certificate.  

9.  On 11 February 1976, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed the issuance of an UD and reduction to the lowest enlisted grade.

10.  He was discharged accordingly on 31 March 1976 in the rank/grade of private (PV1)/E-1.  He was credited with 1 year, 3 months, and 22 days of net active service and 1,902 days of lost time.

11.  There is no evidence the applicant requested assistance through his chain of command for any personal problems which prevented him from completing his period of service.  His records are absent any evidence of awards for meritorious achievement or performance during his of service.

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

13.  He provided four letters of recommendations for an upgrade of his discharge.  The letters attest to his volunteer work, business, and his valuable work as a firefighter, his recognition as being honored as Fireman of the Year for 2008, his devotion, his leadership, and volunteerism.  None of these statements have a statement recommending an upgrade of the applicant's discharge.  The applicant also lists his many certificates received as a fireman and his achievements earned from his performance as a fireman.

14.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 stated a member who had 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 UD would normally be furnished an individual who was discharged for the good of the Service. 

15.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted; however, the evidence shows he received several punishments under Article 15 for willfully disobeying lawful orders, failing to go to his appointed place of duty, and AWOL.  He was reported AWOL on 20 October 1970.  Upon his return to military control on 27 December 1975, he voluntarily requested discharge in lieu of trial by court-martial.  In his request, he stated that he did not want to remain in the Army and would except an UD to get out.  The convening authority approved his request for discharge for the good of the service and directed issuance of an UD Certificate and reduction to the lowest enlisted grade.  Accordingly, he was discharged on 31 March 1976, under the provisions of Army Regulation 635-200, chapter 10.

2.  Neither the applicant nor counsel has provided any evidence or a convincing argument to show his UD should be upgraded and or that it was unjust.  The documentation submitted in support of his application was reviewed; however, the documentation provided neither probative evidence nor a convincing argument in support of an upgrade of his under other than honorable conditions discharge.  

3.  His military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general discharge.

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.

5.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100020862





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ABCMR Record of Proceedings (cont)                                         AR20100020862



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