BOARD DATE: 28 April 2011
DOCKET NUMBER: AR20100026703
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 discharge be upgraded.
2. The applicant states he hopes his discharge can be upgraded so he can receive benefits that he desperately needs.
3. The applicant provides no additional evidence to support his request.
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 14 February 1969. He completed basic training, advanced individual training, and basic airborne training and was awarded military occupational specialty 11B1P as an airborne-qualified infantryman.
3. The applicant was absent without leave (AWOL).
4. On 3 November 1971, charges were preferred against the applicant for being AWOL from 3 July-8 September 1970, 16 September 1970-22 January 1971, and 25 February-1 November 1971.
5. The applicant consulted with counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial. He indicated he understood the elements of the charges against him and admitted he was guilty of at least one offense for which a punitive discharge was authorized. He also acknowledged he understood he could receive an undesirable discharge (UD), he would be deprived of many or all Army benefits, and he might be ineligible for veterans' benefits administered by the Veterans Administration. He stated he understood he could expect to encounter substantial prejudice in civilian life if he were issued a UD. He indicated he had received legal advice, but his request had been made voluntarily and it reflected his own free will.
6. The applicant's chain of command recommended approval of his request with a UD.
7. The commanding general approved the applicant's request and directed that he be issued a UD. On 26 November 1971, the applicant was issued a UD under the provisions of Army Regulation 635-200, chapter 10.
8. On 24 June 1974, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:
a. 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, a UD was normally considered appropriate at the time.
b. 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. 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 discharge proceedings were conducted in accordance with law and regulations applicable at the time. The characterization of his service is commensurate with his overall military record. He has not submitted sufficient mitigating evidence to justify relief.
2. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20100026703
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ABCMR Record of Proceedings (cont) AR20100026703
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