BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100021999 


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 forced to enlist due to legal problems.  This black mark should not be held against him.

3.  The applicant provides no supporting documentation.

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 served on active duty in the Regular Army from 5 June 1972 through 7 September 1973.

3.  At the time of his enlistment he asserted he had no police or juvenile records and no pending court action of any kind.  The local, county, and state police agencies affirmed that he had no police record.

4.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on:

	a.  29 August 1972 for failing to go at the time prescribed to his appointed place of duty; and

	b.  10 May 1973 for being absent without leave (AWOL) from 21 November 1972 through 28 February 1973.

5.  On 1 June 1973, the applicant again departed AWOL until 17 June 1973, when he surrendered to military authorities at Fort Sheridan, Il.  He was then transferred to Fort Riley, KS pending disposition of this AWOL offense.  However, the applicant again departed AWOL on 19 June 1973 which resulted in him being dropped from the rolls (DFR) of his unit.

6.  He was apprehended by civilian authorities as a deserter.  Upon his return to military control after this period of AWOL/DFR, he submitted a statement to the effect that he had been forced to enlist due to "outside reasons."  He did not identify what these reason were.  He stated that he had been unable to cope and adjust to military life even with reverting to the use of drugs.

7.  On 3 August 1973, court-martial charges were preferred against the applicant for being AWOL from on or about 19 June 1973 to on or about 19 July 1973. 

8.  On 24 August 1973, after consulting with counsel and being advised of his rights and options, 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 for an offense punishable by a bad conduct or dishonorable discharge.  He acknowledged that if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.

9.  On 1 September 1973, the court-martial convening authority approved the applicant's request for voluntary discharge and directed the issuance of an Undesirable Discharge Certificate and reduction to the rank/grade of private (PV1)/E-1.

10.  The applicant was discharged on 7 September 1973 with an undesirable discharge.  He completed 10 months and 4 days of total active service with
149 days of time lost.

11.  Army Regulation 635-200 sets forth the policies and procedures for enlisted personnel separations.  It provides the following:

	a.  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 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.

	b.  Paragraph 3-7b, a general discharge is a separation under honorable conditions issued to a Soldier whose military record is satisfactory but not so meritorious as to warrant an honorable discharge.

	c.  Paragraph 3-7c, an undesirable discharge characterized as under other than honorable conditions is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.

	d.  Paragraph 3-7c(7) specifically addresses the issuance of an under other than honorable conditions characterization of service for discharges issued under the provisions of Army Regulation 635-200, chapter 10.

12.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for AWOL offenses in excess of 30 days.

13.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was forced to enlist; however, there is no evidence of record and he has not provided any evidence to support his contention.

2.  The applicant had twice received NJP and he had spent approximately one third of his limited period on active duty in an AWOL status.  Both of his AWOL periods ended with civilian apprehension suggesting the applicant had no intention to honor his military obligation.

3.  Further, even if he had been "forced" to enlist, this does not mitigate his misconduct on active duty that resulted in the preferral of a court-martial charge for his last period of AWOL/DFR and his subsequent voluntary request for discharge in lieu of court-martial.

4.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offence for which he was discharge and is appropriate for the applicant's overall record of military service.

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)                                         AR20100021999



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ABCMR Record of Proceedings (cont)                                         AR20100021999



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