IN THE CASE OF:	  

		BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20100022185 


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 his undesirable discharge (UD) be upgraded to a general under honorable conditions discharge (GD).

2.  The applicant states his DD Form 214 (Report of Separation from Active Duty) shows he accrued either 410 or 377 days of lost time; however, he was only absent without leave (AWOL) for 5 days during the period 3-9 September 1974.

3.  The applicant provides two character reference statements.

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 record shows he enlisted in the Regular Army on 5 May 1974.  He held in and served in military occupational specialty 76X (Subsistence Supply Specialist).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was advanced to the rank/grade of private (PV2/E-2) on 5 October 1974 and this was the highest grade he held while serving on active duty.  Item 21 (Time Lost Under Section 972, Title 10, U.S. Code) shows he was reported AWOL during the following four periods totaling 377 days:

* 3-9 September 1974 (6 days)
* 15 October 1974-11 December 1974 (58 days)
* 18 December 1974-20 September 1975 (277 days)
* 27 September-1 November 1975 (36 days)

4.  His military record shows he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 10 September 1974 for being AWOL from 3-9 September 1974.

5.  A DD Form 458 (Charge Sheet) was prepared on three separate occasions preferring court-martial charges against the applicant for violating Article 86 of the UCMJ for being AWOL on three separate occasions as indicated on his DA Form 2-1.

6.  On 3 November 1975, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal 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 trial by court-martial.

7.  In his request for discharge, the applicant acknowledged he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated he understood that he could face substantial prejudice in civilian life if he were issued a UD and submitted a statement on his own behalf.

8.  In the applicant's statement he indicated he just wanted to get out of the Army.

9.  On 1 December 1975, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the applicant's reduction to the lowest enlisted grade and issuance of a UD Certificate.  On 23 December 1975, the applicant was discharged accordingly.

10.  The applicant's DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10.  It also shows he completed 6 months and 2 days of total active service.  He accrued 410 days of lost time due to 377 days of AWOL and 33 days of excess leave.

11.  The applicant's official military personnel file (OMPF) contains two additional DD Forms 214 issued on 24 August 1977 and 17 November 1980 which show he served on active duty for the following two periods until he was discharged under the provisions of chapter 14, Army Regulation 635-200, by reason of fraudulent entry:

* 5 July 1977-24 August 1977
* 1 July1980-17 November 1980

12.  On 18 February 1981, after having carefully reviewed the applicant's record and the issues he presented, the Army Discharge Review Board concluded the applicant's discharge was proper and equitable and voted to deny his request for an upgrade.

13.  The applicant provides two character reference statements from individuals who attest that he is a good friend and neighbor, very understanding, and loves fishing and westerns.

14.  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 or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A UD Certificate would normally be furnished to an individual who was discharged for the good of the service.

15.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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 his UD should be upgraded to a GD because his DD Form 214 incorrectly shows he accrued 410 or 377 days of lost time.

2.  Although the applicant indicates he was only AWOL for 5 days, the evidence of record confirms he was reported AWOL on four separate occasions totaling 377 days as evidenced by the entries contained on his DA Form 2-1.  As a result, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.  The applicant's offenses rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

4.  The evidence of record further shows the applicant entered active duty service two additional times after receiving a UD and he was discharged for fraudulent entry each time, evidencing integrity, behavior, and character unbecoming a Soldier in the U.S. Army.

5.  In view of the foregoing, the applicant's request should be denied.

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 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)                                         AR20100022185



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ABCMR Record of Proceedings (cont)                                         AR20100022185



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