IN THE CASE OF:	  

		BOARD DATE:	    29 March 2011

		DOCKET NUMBER:  AR20100023742


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, in effect, upgrade of his under other than honorable conditions discharge.

2.  The applicant states he was only 16 years old at the time of his enlistment.  He states his first absent without leave (AWOL) period was the result of leaving to see his ailing grandmother; his second AWOL period was to attend her funeral.  When he returned, he was given the choice of signing a request for discharge or going to the stockade.  At his young age, he chose the less frightening option because he didn't understand the consequences of electing discharge.  He concludes by stating there are parts of his military past he wishes he could change but knows he cannot.  He does not wish for his discharge to reflect poorly on his family, so he is asking the Board to carefully review his post-service contributions to society in determining his request for relief.

3.  The applicant provides 10 third-party letters of support.

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 enlisted in the Regular Army for a 2-year term on 22 December 1968 at nearly 18 years of age.  He completed training and he was awarded military occupational specialty 61B (Water Craft Operator).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  On 9 July 1969, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 19 May 1969 to 26 June 1969.

4.  Special Orders Number 168, Headquarters, U.S. Army Transportation School, Fort Eustis, VA, dated 27 August 1969, directed his reassignment to the U.S. Army Overseas Replacement Station, Fort Dix, NJ, effective 23 September 1969.

5.  On 23 September 1969, he was reported as AWOL from the U.S. Army Overseas Replacement Station, Fort Dix, NJ.  He remained AWOL until he surrendered to civilian law enforcement on 21 December 1969 and he was returned to military control on 22 December 1969.

6.  On 2 January 1970, he was reported as AWOL by the Special Processing Detachment, Fort Stewart, GA.  He remained AWOL until he was apprehended by civilian law enforcement on 1 May 1970 and he was returned to military control on 6 May 1970.

7.  On 21 May 1970, court-martial charges were preferred against him for two specifications of being AWOL.

8.  On 22 May 1970, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

9.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

10.  On 3 June 1970, the separation authority approved his request for discharge and directed that he be issued an under other than honorable conditions discharge.  On 3 June 1970, he was discharged accordingly.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he completed 10 months and 3 days of total active service.  He also had 219 days of time lost due to AWOL and confinement.

11.  There is no indication he applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

12.  He provides 10 third-party letters of support, each attesting to his work ethic, trustworthiness, honor, integrity, dedication, and selflessness as a husband, father, co-worker, civic leader, fund raiser, and community volunteer.  These letters indicate he maintained employment with the city of Urbana, Ohio, eventually retiring after 30 years, and he remains active in civic, religious, and volunteer endeavors.

13.  Army Regulation 635-200 (Personnel Separations) 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.  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, a discharge under other than honorable conditions is normally considered appropriate.

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.  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 request for upgrade of his under other than honorable conditions discharge has been carefully considered; however, there is insufficient evidence to support this request.  His post-service record of civic contributions and accomplishments has been noted; unfortunately, while exponentially increasing his value to society, they do not diminish the negative aspects surrounding his characterization of service.

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.

3.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

4.  Based on the foregoing, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either 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 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)                                         AR20100014558



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100023742



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1