IN THE CASE OF:	  

		BOARD DATE:	  19 May 2011

		DOCKET NUMBER:  AR20100027260 


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 undesirable discharge be upgraded to at least a general discharge.

2.  The applicant states, in effect, he was involved in an altercation due to self-defense and was frustrated with the situation and went absent without leave (AWOL) for about 6 weeks.  When he returned he was placed in the stockade and court-martialed; however, and the court-martial findings were in his favor as far as the altercation went.  He also states that his defense counsel told him that his discharge would be automatically upgraded within 6 months.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States 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 was born on 8 September 1950 and he enlisted in the Regular Army in Jacksonville, Florida on 29 January 1971 for a period of 2 years.  He was transferred to Fort Jackson, South Carolina to undergo his training.

3.  On 23 April 1971, the applicant went AWOL and remained absent until he was returned to military control on 20 May 1971.  The applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial and his request was disapproved.

4.  On 21 May 1971, he again went AWOL and remained absent until 7 June 1971 when he was returned to military control.  He again submitted a request for discharge for the good of the service in lieu of trial by court-martial and his request was disapproved.

5.  On 15 July 1971, he again departed AWOL and remained absent until he was returned to military control on 14 August 1971 and charges were preferred against him for the three AWOL offenses.

6.  On 31 August 1971, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated 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 acknowledged he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further stated he had been advised not to accept an undesirable discharge in the expectation that it would later be changed to a general or an honorable discharge because the likelihood of that ever occurring was extremely remote.  He elected not to submit a statement in his own behalf.

7.  The applicant’s records contain evidence that defense counsel advised the applicant of the procedures for applying for an upgrade of his discharge and he was told that the likelihood was his discharge would not be upgraded. 

8.  On 10 September 1971, the appropriate authority (a major general) approved his request for discharge and directed that he be furnished an Undesirable Discharge Certificate.


9.  On 20 September 1971, he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an Undesirable Discharge Certificate.  He completed 4 months and 29 days of total active service and had 77 days of lost time due to being AWOL.

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

11.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions was then and is still normally considered appropriate.

12.  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 separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.


3.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to his repeated misconduct, his overall undistinguished record of service during such a short period of time, and the absence of mitigating circumstances.  His service simply did not rise to the level of even a general 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)                                         AR20100027620



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ABCMR Record of Proceedings (cont)                                         AR20100027260



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