IN THE CASE OF:	  

		BOARD DATE:	  14 April 2011

		DOCKET NUMBER:  AR20100024574 


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, an upgrade of his undesirable discharge.

2.  The applicant states, in effect, there was no pattern of behavior that constituted a significant departure from the conduct expected of a member of the military service.  He states he made one mistake.  After graduating from training, he wanted to go to Germany but he was assigned to Fort Hood, TX.  While there, he performed his duties to the best of his abilities.  There was nothing else to do there, so he went home.  His father convinced him to surrender.  He did so and he was offered a choice of going to prison or being discharged.  He elected the discharge and he has regretted this decision ever since.  Nevertheless, he has suffered enough as a result of this discharge.  It has been 33 years since he left the Army and this issue keeps lingering in his mind.  

3.  The applicant provides 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.  On 23 September 1975, the applicant enlisted in the Regular Army and held military occupational specialty 63B (Wheeled Vehicle Mechanic).  The highest rank/grade the applicant attained during his period of military service was private first class/E-3.  He was assigned to Fort Hood, TX.

3.  On 23 September 1976, he departed his unit in an absent without leave (AWOL) status and on 21 October 1976, he was dropped from Army rolls as a deserter.  He surrendered to military authorities on 26 November 1976 at Fort Knox, KY.  

4.  On 8 December 1976, court-martial charges were preferred against the applicant for one specification of being AWOL from 23 September to 26 November 1976.

5.  On 9 December 1976, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct 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).

6.  In his request for discharge he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, 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.

7.  In connection with his request for discharge, he submitted a statement wherein he indicated that he was pushed into enlisting in the Army as he was without a job and away from home at the time.  He had outstanding bills (rent, car, motorcycle), so he joined the Army.  He regretted his decision from the very first day he joined the Army.  He tried asking for a discharge but no one would listen to him.  He just wanted out of the Army and if he was not discharged he would go AWOL again.

8.  On 23 December 1976, his immediate and intermediate commanders recommended approval of the discharge action with the issuance of an undesirable discharge.

9.  On 3 January 1977, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he be reduced to the lowest enlisted grade and issued an undesirable discharge.  

10.  On 21 January 1977, the applicant was accordingly discharged.  The DD Form 214 he was issued shows he completed a total of 1 year, 1 month, and 25 days of creditable active military service and he had 65 days of lost time.

11.  On 2 July 1979, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

12.  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.  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 appropriate at the time the applicant was discharged:

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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 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, Army Regulation 635-200 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.  Based on his record of indiscipline, his 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, the applicant is not entitled to an upgrade of his 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)                                         AR20100024574



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100024574



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1