IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100021866 


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 made a very bad decision in regard to his future.  He is requesting a second chance in life and feels he should not have to pay any more than he has for what he did 39 years ago as a young immature boy. 

3.  The applicant provides a self-authored letter and three letters of support.

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 for a period 3 years on 14 July 1971 at age 25.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 76V (Material Storage Specialist).  The highest rank/grade he attainted was private first class/pay grade E-3.

3.  On 28 February 1972, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 1 November 1971 to
5 February 1972.  He was sentenced to a forfeiture of $164.00 pay, 30 days of restriction, and 15 days of extra duty. 

4.  On 21 February 1973, the applicant was convicted by a special court-martial of being AWOL from 14 September 1972 to 16 January 1973.  He was sentenced to be reduced to private/pay grade E-1 and confinement for 60 days.

5.  On 18 January 1974, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongful possession of controlled substances.  The punishment consisted of a forfeiture of $50.00 pay, with $25.00 suspended for 60 days. 

6.  On 18 December 1974, the applicant was convicted by a summary court-martial of being AWOL from 20 May to 14 October 1974.  He was sentenced to be reduced to private E-1, a forfeiture of $200.00 pay, and 30 days in confinement. 

7.  Charges were preferred against the applicant for two specifications of being AWOL from 3 February to 6 September 1975 and from 28 November 1975 to 
3 February 1976.

8.  On 10 February 1976, the applicant consulted with counsel and voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), for the good of the service:

   a.  The applicant's request for a discharge indicates he was not subjected to coercion or duress.

   b.  He was afforded the opportunity to consult with counsel.  He was advised that he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life if he was issued an Undesirable Discharge Certificate.

   c.  The applicant was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant submitted a statement and he indicated, in effect, that he entered the military to advance his education so that he could get a better job.  He stated he was not bitter towards the Army but he felt he could no longer function as a duty Soldier because he had too many hang-ups in the Army and at home.  He also stated he wanted out of the Army because his records were mixed-up with several AWOLs and court-martials that were not true, but he had been unable to get anyone to help him get them corrected.  Therefore, he did not care anymore, he just wanted out.  He stated he had the Army to thank for losing his family and his car.  He understood he would lose all of his benefits to include his burial marker, loans, and burial flag.  He knew what an undesirable discharge was and he was willing to "except one."   

9.  On 8 March 1976, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, Army Regulation 635-200, with an undesirable discharge.

10.  The applicant’s DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 25 March 1976 in accordance with chapter 10, Army Regulation 635-200, for the good of the service with an undesirable discharge.  At the time he had completed 2 years, 9 months, and 12 days of total active service and he had 695 days of lost time from 1 November 1971 to 5 February 1972, 14 September 1972 to 16 January 1973, 20 May to 14 October 1974, 
16 October 1974 to 9 January 1975, and 3 February to 29 September 1975. 

11.  On 17 October 1977, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:

   a.  Chapter 10 of the version of the regulation 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.  An Undesirable Discharge Certificate, under other than honorable conditions, would normally be furnished to an individual who was discharged for the good of the service.
   
   b.  Army Regulation 625-200, 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.

   c.  Army Regulation 625-200, 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 contends that he made a very bad decision in regard to his future due to his youth and immaturity.  He is requesting a second chance; he does not believe that he should have to continue to suffer the effects of an undesirable discharge more than 39 years.

2.  The applicant’s record shows he was charged with the commission of offenses 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 his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service. 

3.  The applicant was 25 years of age when he enlisted in the Army.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligations. 




4.  The evidence of record shows the applicant had 695 days of lost time during the period of service under review.  Thus, the evidence of record clearly shows the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and the applicant 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)                                         AR20100021866



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ABCMR Record of Proceedings (cont)                                         AR20100021866



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