IN THE CASE OF:	  

		BOARD DATE:	  24 March 2011

		DOCKET NUMBER:  AR20100023089 


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 to a general discharge.

2.  The applicant states when he entered the Army he could not read or write.  He was always placed in the slow learner class in school.  He dropped out of school and he joined the Army at 17 years of age.  An Army recruiter helped him pass the test.  When he attended AIT (advanced individual training) he could not read and asked his captain for help, but he was denied.  He felt frustrated and had no choice.

3.  The applicant provides:

* a statement from his sister
* his school record
* his Undesirable Discharge Certificate
* his DD Form 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 record shows he was born on 13 December 1954.  He enlisted in the Regular Army on 30 October 1972 for a period of 3 years at the age of 17 years and 10 months.  He completed basic combat training at Fort Knox, KY, and was subsequently reassigned to Aberdeen Proving Ground, MD, for completion of AIT.

3.  On 14 February 1973, he departed his training unit in an absent without leave (AWOL) status.  However, it appears he returned to military control on 1 March 1973.

4.  On 5 March 1973, he again departed his unit in an AWOL status and he was dropped from the rolls (DFR) of his unit as a deserter on the same date.  He returned to military control on 16 July 1973.

5.  On 3 August 1973, his command preferred court-martial charges against him for two specifications of being AWOL from 14 February to 2 March 1973 and 5 March to 17 July 1973.

6.  On 3 August 1973, he consulted with legal counsel who advised him 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 Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.

7.  In his request for discharge, he acknowledged he understood that if the discharge request was approved, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged that 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, 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.  On 8 August 1973, his immediate commander recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.  He remarked that the applicant's action was triable by a court-martial.

9.  On 13 August 1973, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.  On 20 August 1973, he was discharged accordingly.

10.  The DD Form 214 he was issued shows he completed 4 months and
21 days of total active service with 150 days of time lost.

11.  On 16 May 1979, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

12.  He submitted:

	a.  A statement, dated 19 October 2006, from an individual identified as his sister who states she remembers her brother was always in the slow learning class, also known as "EMH" and "Special Ed" in school.

	b.  His high school record with the hand-written entry "Dropped 5/7/71." 

13.  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, 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.  

14.  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 record shows 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, his discharge accurately reflects his overall record of service.

2.  The evidence of record shows he was nearly 18 years of age at the time he enlisted in the Regular Army and he was over 18 years of age at the time he committed the offenses that led to his discharge.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  His learning ability at the time was also carefully considered.  However, this issue is not sufficiently mitigating to change his discharge.  Based on his record of indiscipline, the applicant's 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, he is not entitled to 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)                                         AR20100023089



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ABCMR Record of Proceedings (cont)                                         AR20100023089



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