BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20100022326 


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 offered an Article 15 instead of a court-martial and he was unaware of what he was accepting at the time.  He was being forced to pay child support but he was not allowed to see his child; therefore, he went to Virginia to look for his child.  He had not been in trouble prior to this incident. 

3.  The applicant provides:

* Self-authored statement
* Two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 enlisted in the Regular Army (RA) for a period of 3 years on 29 January 1971 and he held military occupational specialty 63F (Recovery Specialist).  

3.  He served in Germany from 16 June 1971 to 9 May 1972.  While in Germany, he was honorably discharged on 20 April 1972 for the purpose of immediate reenlistment and he executed a 4-year reenlistment in the RA on 21 April 1972.

4.  His records show he was awarded the National Defense Service Medal and the Army Good Conduct Medal.  The highest rank/grade he attained was specialist five/E-5.

5.  On 5 April 1974, he departed his unit in an absent without leave (AWOL) status and on 5 May 1974, he was dropped from the Army rolls as a deserter.  He returned to military control at Fort Gordon, GA on 31 October 1974.

6.  On 12 November 1974, court-martial charges were preferred against the applicant for the above period of AWOL.

7.  On 15 November 1974, 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, the maximum permissible punishment authorized under the Uniform Code of Military Justice (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 under the provisions chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for the good of the service - in lieu of trial by court-martial.

8.  In his request for discharge, he acknowledged he understood by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge.  He acknowledged he was making this request of his own free will and he had not been subjected to any coercion.  He also acknowledged he had been advised of the implications that were attached to his request.  He further acknowledged he understood that if the discharge request was approved, 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He submitted a statement in his own behalf in which he stated that he went home on the weekend and did not return because he wanted to request a discharge from the Army.  He also stated that he had the chance to be straight but refused to do so, and that he fully realized the consequences; nonetheless, he wished to make application for a discharge for the good of the service.

9.  On 12 and 27 November 1974, his intermediate and senior commanders recommended approval of the applicant's discharge request with the issuance of an Undesirable Discharge Certificate.  

10.  On 5 December 1974, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  On 31 December 1974, the applicant was accordingly discharged.

11.  The DD Form 214 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 3 years, 4 months, and 3 days of total active service and he had 209 days of time lost.

12.  On 22 March 1982, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

13.  He submitted a statement in which he stated he was unaware of the consequences of a chapter 10 and that he had been undergoing some family problems at the time. 

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 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.

15.  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.  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 his rights were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

2.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade of his 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)                                         AR20100022326



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100022326



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1