BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100027324 


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 the Red Cross notified him that his father was ill and could not work.  This created a financial hardship that made him suicidal.  He requested leave but he was denied.  His commanding officer thought he was a communist because he (the applicant) was born n Cuba.  He had no option but to leave.  He was apprehended the same day that he discussed returning with his recruiter in California.  He was also told if he accepted this discharge and stayed trouble-free 6 years his character of service would be upgraded to general.  It has now been 37 years since he was discharged and he believes it is time for this injustice to be corrected. 

3.  The applicant did not provide any additional 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's records show he enlisted in the Regular Army for a period of 3 years on 7 November 1972.  He completed basic combat training at Fort Ord, CA, and was subsequently reassigned to Fort Lee, VA, for completion of advanced individual training.

3.  On 2 March 1973, he departed his training unit in an absent without leave (AWOL) status.  However, he returned to military control on 8 March 1973.

4.  On 9 March 1973, he again departed his unit in an AWOL status and he was dropped from Army rolls as a deserter on the same date.  He was apprehended by Federal authorities and returned to military control on 6 September 1973.

5.  On 10 September 1973, his command preferred court-martial charges against him for two specifications of being AWOL from 2 to 8 March 1973 and 9 March to 6 September 1973. 

6.  On 12 September 1973, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

7.  In his request for discharge, he acknowledged he understood that if the discharge request was approved, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He also acknowledged he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.

8.  On 14 and 19 September 1973, his immediate, intermediate, and senior commanders recommended approval of his request for discharge with the issuance of an Undesirable Discharge Certificate.  They all agreed that the applicant's pattern of behavior indicated retention was neither practical nor desirable.

9.  Consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service in lieu of trial by court-martial and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  

10.  On 5 October 1973, the applicant was accordingly discharged.  The 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that he was issued shows he completed a total of 4 months and 
22 days of creditable active military service and he had 187 days of lost time.

11.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations. 

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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 under other than honorable conditions discharge is normally considered appropriate an undesirable discharge was considered appropriate at the time the applicant was discharged.

13.  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

14.  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 contends his discharge should be upgraded.   

2.  His records show he was charged with the commission of an offense under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  His contention related to his father's illness at the time was noted; however, this issue is not sufficiently mitigating to change his discharge.  Based on his record of indiscipline, 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.  

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)                                         AR20100027324



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ABCMR Record of Proceedings (cont)                                         AR20100027324



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