IN THE CASE OF:	  

		BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100022355 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states that he was 18 years of age when he left home for the first time to join the Army and serve his country.  One day in basic training, after having received shots, he fell down a flight of stairs injuring his back and spending time in the hospital.  He goes on to state that after that, adjusting to military life was made difficult by his drill sergeants.  He continues by stating that it became a mental battle between the part of him that wanted to serve his country and the part that wanted to be out of the military.  Therefore, for the sake of his sanity he decided to go absent without leave (AWOL).  Upon his return he was threatened and humiliated by his commanding officer and was not afforded an opportunity at rehabilitation, counseling, or any legal advice.  He further states that he was given an undesirable discharge and summarily kicked out of the Army and has suffered physical, mental and financial harm ever since.

3.  The applicant provides a one-page letter explaining his application.

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 in New Orleans, Louisiana on 18 June 1973 for a period of 3 years, training as a personnel specialist and assignment to Fort Hood, Texas.

3.  He completed his basic training at Fort Polk, Louisiana and his advanced individual training at Fort Ord, California before being transferred to Fort Hood, Texas on 4 November 1973 for assignment as a company clerk in a Supply and Service Battalion.

4.  On 26 November 1973, he went AWOL and remained absent in desertion until he was apprehended by Federal Bureau of Investigation (FBI) officials in New Orleans on 1 May 1974 and was returned to military control at Fort Hood where charges were preferred against him for the absence.

5.  On 14 May 1974, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  In his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He further elected to submit a statement or explanation in his own behalf which he allowed his counsel to submit in his own behalf.  His counsel explained that the applicant was having difficulties in adjusting to military life but did want the stigma of a court-martial conviction on his records and was willing to accept an undesirable discharge even after having been counseled on the disadvantages of such a discharge.

6.  The appropriate authority (a lieutenant general) approved his request on 29 March 1974 and directed that the applicant be furnished an Undesirable Discharge Certificate.

7.  Accordingly, he was discharged under other than honorable conditions on 12 June 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 6 months and 20 days of total active service and had 156 days of lost time due to AWOL.

8.  On 9 July 1974, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended at that time that he had been forced into going AWOL because he had been trying to get out of the Army since basic training and had even thrown himself off some stairs trying to hurt himself so he could get discharged but it did not work.  He also stated that his drill sergeant talked him out of seeking a discharge but his biggest problem was that he missed home and could not stand the depression.  He also stated that he did not join the Army to become a Soldier and die for his country like all of the others, he joined for the educational benefits and the fact that he could get paid at the same time, which sounded like a good idea at the time; however, he could not get over his missing his home so he went AWOL.

9.  On 25 August 1976, the ADRB determined that his discharge was both proper and equitable and voted to deny his application.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 635-200, 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.

12.  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 applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.
 
3.  The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given the length of his absence, his undistinguished record of service, and the absence of mitigating circumstances at the time.  His service simply did not rise to the level of under honorable conditions.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

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)                                         AR20100022355





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ABCMR Record of Proceedings (cont)                                         AR20100022355



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