IN THE CASE OF:	  

		BOARD DATE:	  24 March 2011

		DOCKET NUMBER:  AR20100022923 


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.

2.  The applicant states his DD Form 4 (Enlistment Contract - Armed Forces of the United States) was not fulfilled by the Army.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 on 3 June 1974.  His DD Form 4 shows he enlisted for military occupational specialty 31T (Field System Communications Security (COMSEC) Repairman) and Fort Carson, CO as Station of Choice.

3.  He graduated from the Field Systems COMSEC Maintenance Course on 
24 October 1974 and he was reassigned to Headquarters and Headquarters Company, 8th Signal Battalion, 8th Infantry Division in Germany.

4.  On 25 November 1974, he requested reassignment to Fort Carson, CO based on his unfulfilled enlistment contract.  Special Orders Number 121, issued by Headquarters, 4th Infantry Division (Mechanized), Fort Carson, CO, assigned the applicant to Headquarters and Headquarters Company 124th Signal Battalion with a reporting date of 28 April 1975.

5.  On 16 September 1976, his command preferred court-martial charges against him for two specifications of being AWOL from 11 January to 28 March 1976 and 19 April to 9 September 1976. 

6.  On 16 September 1976, 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 or a dishonorable 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 for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

7.  In his request for discharge, he acknowledged he understood that if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged that he understood 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 and he could expect to encounter substantial prejudice in civilian life.

8.  In a written statement submitted with his discharge request the applicant asserted that he went AWOL because he was experiencing family problems.  His mother was under medical care, his grandfather was in critical condition, and his girlfriend was pregnant.

9.  On 23 and 27 September 1976, his immediate and senior commanders recommended approval of his request with the issuance of an Undesirable Discharge Certificate.  

10.  The separation authority approved his request for discharge under the provisions of chapter 10 of Army Regulation 635-200, 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 26 October 1976, the applicant was discharged.  

11.  The DD Form 214 he was issued shows he completed a total of 1 year,        9 months, and 16 days of creditable active military service and he had 222 days of lost time.

12.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge. 

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge was considered appropriate at the time.

14.  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.

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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows he enlisted for MOS 31T and Station of Choice - Fort, Carson, CO.  He was awarded MOS 31T and initially assigned to Germany.  However, upon his request, he was reassigned to Fort Carson, CO.  Therefore, his contention that his contract was not fulfilled is not supported by the evidence.  

2.  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 chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested a discharge in lieu of trial by court-martial.  As part of his request for discharge he submitted a statement in which he acknowledged his lost time was due to family problems.  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.  Therefore, he is not entitled to an honorable or 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)                                         AR20100022923



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ABCMR Record of Proceedings (cont)                                         AR20100022923



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