IN THE CASE OF:	  

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100021395 


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 to a general discharge.

2.  The applicant states he was given a choice to get out of the Army or never see his unborn child or wife.  He got out of the Army to see his little girl come into this world and raise her.  He was young and did not understand the law at that time.  He would like his discharge upgraded before he passes away due to his health.

3.  The applicant did not provide any additional documentary evidence. 

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 records show he was born on 29 July 1951 and enlisted in the Regular Army at 18 years of age on 7 November 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11C (Infantry Indirect Fire Crewmember).  The highest rank/grade he attained during his military service was private/E-2.  

3.  His records show he accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) on 26 February 1970 for unlawfully asking and receiving a sum of money from a trainee with intent to render services.

4.  On 3 July 1970, the U.S. Army Overseas Replacement Station, Oakland, CA, reported the applicant was in an absent without leave (AWOL) status and on
2 August 1970, he was dropped from Army rolls.  He returned to military control at Fort Riley, KS, on 10 June 1971.  

5.  On 18 June 1971, the convening authority preferred court-martial charges against him for one specification of being AWOL from on or about 3 July 1970 to on or about 10 June 1971.

6.  On 30 July 1971, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions; the maximum permissible punishment authorized under the UCMJ; the possible effects of a request for discharge; and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

7.  In his request for discharge, he acknowledged he understood that if the discharge request was approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further acknowledged he understood that if such discharge was approved, he could encounter substantial prejudice in civilian life, that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veteran Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  His immediate and intermediate commanders recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate. 

9.  On 9 August 1971, the separation authority approved the applicant's request for discharge for the good of the service in accordance with Army Regulation 635-200, chapter 10, and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 13 August 1971.

10.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged for the good of the service in lieu of a court-martial with an Undesirable Discharge Certificate.  This form further confirms he completed a total of 9 months and 25 days of creditable active military service and he had 342 days of lost time.

11.  On 27 January 1978, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

12.  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(s) charged, the 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.

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 evidence of record shows the applicant was 18 years of age at the time he enlisted and committed his offense; however, there is no evidence to indicate he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  There is no evidence in his records, and he did not provide substantiating evidence, that shows he was AWOL as a result of his age. 
2.  His records show he was charged with the commission of an offense punishable under the 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.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  His character of service is appropriate based on the facts of the case and his discharge accurately reflects his overall record of service.

3.  There is no evidence in his records that he encountered challenges or difficulties regarding the birth of his child or that he addressed this issue with his chain of command at the time.  Even if he did encounter difficulties, there were many other legitimate avenues he could have used to resolve the situation.  

4.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20100021395



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ABCMR Record of Proceedings (cont)                                         AR20100021395



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