BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100026495 


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 to a general or an honorable discharge.

2.  The applicant states he was very immature, reckless, and had a lot of marital, financial, and alcohol problems that he could not deal with.  He states he should have asked for help instead of running from his problems and fears.  He now wants to straighten out what life he has left.

3.  The applicant provides no documentary evidence.

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 21 December 1972 at the age of 19 for a period of 3 years.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 71B (Clerk Typist).  The highest rank/grade he attained was private first class (PFC)/E-3.

3.  On 2 May 1974, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his appointed place of duty between 24 April 1974 to 25 April 1974 and for failing to go at the time prescribed to his appointed place of duty on 26 April 1974.

4.  Records indicate the applicant received two additional NJPs under Article 15, UCMJ on 17 June 1974 and 26 June 1974; however, the Article 15's are unavailable for review.

5.  On 12 September 1974, the applicant was barred from reenlistment for three NJPs under Article 15, UCMJ, for AWOL and indebtedness.

6.  On 12 December 1974, charges were preferred against the applicant for one specification of failing to go tat the time prescribed to his appointed place of duty and for one specification of being absent without leave (AWOL) from 5 November 1974 to 3 December 1974.

7.  On 12 December 1974, the applicant consulted with legal counsel and voluntarily requested a discharge under the provisions of Army Regulation
635-200 (Personnel Separation - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial court-martial.

	a.  The applicant's request for discharge indicates he was not subjected to coercion or duress.

	b.  He was afforded the opportunity to consult with counsel.  He was advised that he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life if he was issued an Undesirable Discharge Certificate.

	c.  The applicant was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant submitted a statement and he indicated, in effect, that he was drafted in 

the Army but instead of coming in and not knowing where he would go he enlisted in the Army for station of choice.  He tried to give the Army a try but could not because of his fears and he had to get away.  He also stated that the Army was no good to him and he wanted out of it.  He further stated that if his discharge was disapproved he would find a way to get out. 

8.  On 13 December 1974, the separation authority approved the applicant’s request for discharge under the provision of Army Regulation 635-200,
chapter 10, with issuance of an Undesirable Discharge Certificate.

9.  The applicant’s DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 23 January 1975 in accordance with Army Regulation
635-200, chapter 10, with a separation program designator (SPD) code of "KFS," for the good of the service - in lieu of trial by court-martial, and issuance of a DD Form 258A (Undesirable Discharge Certificate).  At the time he had completed
1 year, 9 months, and 23 days of net active service, with 102 days of time lost.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  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.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

	b.  Army Regulation 625-200, 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.

	c.  Army Regulation 625-200, 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 separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, considering all the facts of the case, the type of discharge was proper and the characterization of service directed was equitable.

2.  The evidence of record shows the applicant received three Article 15's and a bar to reenlistment during his period of service.  His record clearly shows he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Moreover, his overall quality of service was not satisfactory; therefore, he is not entitled to an honorable or a general under honorable conditions discharge.

3.  In view of all 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)                                         AR20100026495



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100026495



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1