IN THE CASE OF:	  

		BOARD DATE:	  1 March 2011

		DOCKET NUMBER:  AR20100021243


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, in effect, his undesirable discharge (dated 
20 November 1974) and discharge under other than honorable conditions (dated 16 September 1981) be upgraded to a general discharge.

2.  The applicant states:

* He is requesting a general discharge for all the remainder of service time he served honorably on active duty
* Some of the time he served from 30 July 1973 to 20 November 1974 was satisfactory and some of the time he served during his second tour of active duty from 29 November 1977 to 16 September 1981 was also satisfactory
* He suffered a massive stroke in April 2004 and since that time he has been totally and permanently disabled 
	
3.  The applicant provides:

* Two DD Forms 293 (Application for Review of Discharge or Dismissal from the Armed Forced of the United States)
* Undated Letter of Commendation
* Discharge orders, dated 13 November 1974 
* Separation authority action, dated 21 October 1974
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 214 (Certificate of Release or Discharge 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 enlisted in the Regular Army on 30 July 1973 for a period of 
2 years.  He completed his training and was awarded military occupational specialty 12B (combat engineer).  

3.  On 29 January 1974, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 26 December 1973 to 18 January 1974.

4.  On 18 April 1974, NJP was imposed against him for being AWOL for 2 days (15-16 April 1974).

5.  He went AWOL on 10 June 1974 and returned to military control on 
23 September 1974.  Charges were preferred against the applicant on 8 October 1974 and trial by summary court-martial was recommended. 

6.  On 8 October 1974, after consulting with counsel, the applicant submitted a request for 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.  He indicated in his request he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might 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 also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf; however, his statement is not available.

7.  On 21 October 1974, the separation authority approved the applicant's request for discharge and directed the issuance of an undesirable discharge.

8.  He was separated with an undesirable discharge on 20 November 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He served 11 months and 15 days of total active service with 129 days of time lost.

9.  The applicant provided a DD Form 214 for the period ending 16 September 1981.  The facts and circumstances surrounding this discharge are not contained in the available records.  However, his DD Form 214 shows he was discharged under other than honorable conditions on 16 September 1981 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He served a total of 3 years, 3 months, and 2 days of creditable active service with 197 days of lost time.

10.  On 15 May 1979, the Army Discharge Review Board denied the applicant's request for a discharge upgrade.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect in 1974 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.

12.  Chapter 10 of Army Regulation 635-200 (the current version) provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.



13.  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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, dated 8 October 1974, was administratively correct and in conformance with applicable regulations.  

2.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

3.  His brief record of service during his first enlistment included two NJPs and 129 days of time lost.  As a result, his record of service was not satisfactory.  His record of service during this period of service is insufficiently meritorious to warrant a general discharge.
 
4.  With regard to his 1981 discharge under other than honorable conditions, in the absence of evidence to the contrary, it must be presumed his separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request for a general discharge.

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)                                         AR20090010900



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ABCMR Record of Proceedings (cont)                                         AR20100021243



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