BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100024006 


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 a general discharge.

2.  The applicant states that when he signed up for active duty after having served faithfully in the U.S. Army Reserve (USAR) for a couple of years, he did so with the intention of serving overseas.  After discovering that an overseas assignment was not forthcoming, he became disillusioned and went back to his hometown to seek more amiable employment.  He goes on to state he now realizes this was inappropriate and he would like to have the character of his discharge reconsidered because he has been a productive member of society since this occurred.

3.  The applicant provides no additional evidence with 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 USAR in Rainelle, West Virginia, on 14 November 1970 for a period of 6 years.  He completed basic training at Fort Knox, Kentucky, and advanced individual training (AIT) as an ammunition storage specialist at Redstone Arsenal, Alabama.  He was returned to his USAR unit.

3.  On 12 June 1973 while serving in pay grade E-2, he was involuntarily ordered to active duty at Fort Knox, Kentucky, for a period of 18 months and 28 days.

4.  On 27 September 1973, nonjudicial punishment was imposed against him for being absent without leave (AWOL) from 18 September to 23 September 1973.

5.  On 29 September 1973, he again was AWOL and remained absent in desertion until he was apprehended by civil authorities (FBI) in Rainelle, West Virginia, on 19 March 1974.  He was returned to military control at Fort Meade, Maryland, where charges were preferred against him for the AWOL offense.

6.  On 4 April 1974 after consulting with defense 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 also elected to submit a statement in his own behalf wherein he stated he did not like taking orders from others, he was used to his own orders, and he had personal and financial problems that he could not handle in the Army.  He also stated he would continue to be AWOL until he got out.

7.  The appropriate authority approved his request for discharge and directed that he be issued an Undesirable Discharge Certificate.

8.  Accordingly, he was discharged under other than honorable conditions on 29 April 1974 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 4 months and 21 days of active service during his involuntary recall and had 177 days of lost time due to AWOL.

9.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

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 3-7b, 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 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 short period of his service.  His service simply did not rise to the level of a discharge 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 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)                                         AR20100024006



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ABCMR Record of Proceedings (cont)                                         AR20100024006



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