IN THE CASE OF:	  

		BOARD DATE:	  3 May 2011

		DOCKET NUMBER:  AR20100026890 


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 discharge under other than honorable conditions to a general discharge under honorable conditions.

2.  The applicant states in effect, he did not have adequate legal representation and he was told his discharge would be upgraded to a general discharge.  He further states he was told that since he was a sole surviving son and his mother's health was bad, he could be discharged and would still qualify for basic benefits.  He was not made aware of the conditions of the discharge.  He is just requesting a general discharge so he can get burial benefits and a flag for his grandson.  He was only 19 years old and ignorant of legal procedures.  He does not think his attorney represented him well since his record before [the discharge action] was very good.

3.  The applicant provides DD Form 214 (Armed Forces of the United Stated Report of Transfer or Discharge).

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's records show he enlisted in the Regular Army on 29 November 1968 at 17 years of age and he held military occupational specialty 13A (Field Artillery Basic).  The highest rank/grade he held was private/E-2.

3.  On 22 September 1969, he was convicted by a special court-martial for being absent without leave (AWOL) from 10 May 1969 to 13 September 1969.  He was sentenced to 4 months confinement and reduction to private (PV1)/E-1.  He was confined at Fort Campbell, KY.

4.  On 12 January 1970, he was assigned to Fort Benning, GA.  On 29 April 1970, he requested 15 days excess leave due to being on orders for Vietnam.  On 30 April 1970, he was granted 6 days of excess leave.

5.  On 7 June 1970, he was reported AWOL from the U.S. Army Overseas Replacement Station, Fort Lewis, WA, and he was dropped from the rolls (DFR) on 6 July 1970.

6.  On 20 October 1970, he was returned to military control at Fort Campbell, KY.

7.  On 14 December 1970, he was reported AWOL and he was DFR on the same date.

8.  On 6 April 1971, he was returned to military control at Fort Campbell, KY.

9.  On 10 April 1971, he was reported AWOL and he was DFR on 18 May 1971.

10.  On 20 October 1971, he was returned to military control at Fort Campbell, KY.

11.  The specific facts and circumstances surrounding his discharge are not available for review with this case.  However, his DD Form 214 shows he was discharged on 18 November 1971, in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for the good of the service with the issuance of an Undesirable Discharge Certificate.  He was reduced to PV1/E-1 on 12 November 1971.  He completed 1 year, 5 months, and 18 days of active service with 262 days of time lost.

12.  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.

13.  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.

14.  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.

15.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  The applicant did not provide any evidence to show he did not have proper legal representation.  
2.  His record of service shows he had a special court-martial conviction for AWOL and he went AWOL on three other occasions.

3.  Based on his record of misconduct, 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, he is not entitled to an honorable or a general discharge.

4.  Records show that he was 20 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her 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)                                         AR20100026890





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ABCMR Record of Proceedings (cont)                                         AR20100026890



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