IN THE CASE OF:	  

		BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100024525 


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 (UD).

2.  The applicant states, in effect, he was young and immature at the time but he loves his country.  He claims he never should have been in the military due to an electrical accident that occurred on the job prior to entering the military.  

3.  The applicant provides no documentary evidence in support of 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 on 31 December 1973, and he was trained in and awarded military occupational specialty (MOS) 64C (Motor Transport Operator).  

3.  The record confirms the applicant was advanced to the rank/grade of private (PV2)/E-2 on 31 December 1973, and that this is the highest rank he attained while serving on active duty.  

4.  The applicant’s record documents no acts of valor or significant achievement.  It does reveal a disciplinary history that includes 222 days of lost time due to being absent without leave (AWOL) on four separate occasions and a period of imprisonment between 11 February 1974 and 3 April 1975.  

5.  The applicant’s disciplinary history includes a special court-martial (SPCM) conviction for being AWOL from on or about 10 July 1974 to 15 August 1975; accepting non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 20 February 1974, for being AWOL; and on 27 June 1974, for being AWOL and failure to repair. 

6.  On 3 December 1974, the applicant departed AWOL from his unit at 
Fort Campbell, Kentucky, and remained away until returning to military control 
10 April 1975.  On 10 April 1975, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant based on violation of Article 86 of the UCMJ. 

7.  On 15 April 1975, the applicant underwent a separation physical examination.  The Standard Form (SF) 88 (Report of Medical Examination) documenting this examination shows he received all normal findings in the clinical evaluation portion of the examination, it lists no defects or diagnosed conditions, and there are no disqualifying medical conditions documented.  The examining physician assigned a physical profile of 111111 and found the applicant qualified for retention/separation.  

8.  On 11 April 1975, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial and the maximum punishment authorized under the UCMJ; of the possible effects of an under other than honorable conditions discharge; and of the rights 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-marital   In his request for discharge, the applicant acknowledged that as a result of his request, he could receive an Undesirable Discharge Certificate; 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 (VA); and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant included a statement with his request that indicated if his request for discharge were not approved, he would go AWOL again.  

9.  On 12 May 1975, the separation authority approved the applicant’s request and directed he receive an Undesirable Discharge Certificate.  On 30 May 1975, he was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he completed 9 months and 18 days of creditable active military service and accrued 222 days of time lost due to being AWOL and in confinement.  

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.  

11.  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 VA 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.

12.  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.

13.  Army Regulation 635-200, paragraph 3-7b, states 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 applicant’s contention that his discharge should be upgraded because he was young and immature and that he never should have been in the military due to a job-related accident prior to entering the military is not supported by the available evidence.  

2.  The evidence of record confirms the applicant successfully completed training which clearly shows he was sufficiently mature to serve satisfactorily had he chosen to do so.  The record also contains a separation medical examination that confirms he suffered from no disabling medical condition that would have prevented him from performing his duties, or that would have required separation processing through medical channels.  

3.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's UD was normal and appropriate under the regulatory guidance.  His record documents no acts of valor and did not support the issuance of a general discharge by the separation authority at the time of discharge, nor does it support an upgrade to a general discharge at this time.  As a result, his overall record of service is not sufficiently meritorious to support granting the requested relief.

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)                                         AR20100024525



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ABCMR Record of Proceedings (cont)                                         AR20100024525


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