BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100025020 


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.

2.  The applicant states, in effect, he was very young and at home because he was sick when he wrote a letter to get out of the Army.

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 4 February 1972 for a period of 3 years.  The applicant was 18 years of age at the time of enlistment.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 13A (Field Artillery Basic).  The highest grade the applicant attained was private first class/pay grade E-3.

3.  On 23 January 1974, charges were preferred against the applicant for being absent without leave (AWOL) from 6 February to 12 April 1973 and from 23 April 1973 to 7 January 1974. 

4.  On 24 January 1974, after consulting with counsel, the applicant submitted a request for discharge under the provisions of chapter 10, Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), for the good of the service - in lieu of court-martial.  In his request he acknowledged that 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 acknowledged that 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 that he understood that he could receive a discharge under other than honorable conditions and be furnished an Undesirable Discharge Certificate, and that 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; in which he stated that he wanted out of the Army and if his request was denied he would go AWOL again.  

5. On 30 January 1974, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service with the issuance of an Undesirable Discharge Certificate.  At the time he had completed a total of 1 year, 1 month, and 19 days of net active service.  The DD Form 214 (Report of Separation from Active Force) he was issued also shows he had 324 days of lost time. 

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

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.  A discharge under other than honorable conditions would normally be provided an individual who was discharged for the good of the service.  However, an Undesirable Discharge Certificate was authorized at the time the applicant was discharged.

	b.  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 discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

2.  The applicant’s contentions that his discharge should be changed because he was young and at home sick has been noted.  However, his contentions are not sufficiently mitigating to warrant relief when compared to his extensive AWOL record.

3.  The applicant was 18 years of age when he enlisted in the U.S. Army.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military obligations.  

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100025020



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ABCMR Record of Proceedings (cont)                                         AR20100025020



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