IN THE CASE OF:	  

		BOARD DATE:	  21 June 2011

		DOCKET NUMBER:  AR20100027701 


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 under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, he joined the Army because his parents were bankrupt, losing their home, and needed help.  He was young, he still had 
5 months to complete high school so he enlisted in the Army with parental consent at 17 years and 9 months of age.  He did well in the Army until his mother became ill and he was denied a furlough so he refused to participate; he would not even dress for formation.  He went absent without leave (AWOL) because his mother was more important than anything else.  He was given an administrative discharge under the provisions of Army Regulation 635-200, chapter 10.  He was too young to realize the impact the discharge would have on his life.  He cannot say how sorry he is for his behavior; he blew a great opportunity, betrayed his family and himself.  He apologizes for his actions and regrets the immaturity he showed.

3.  The applicant provides:

* A letter that is written to the Army Review Boards Agency
* Two documents from his discharge packet
* DD Form 214 (Report of Separation from Active Duty)




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.  On 8 January 1976, the applicant enlisted in the Regular Army at age 17 with parental consent and completed training as a light weapons infantryman.

3.  On 5 May 1977, he was convicted by a special court-martial of the following offenses:

* Being disrespectful towards a commissioned officer (CO) (on two separate occasions)
* Disobeying a lawful order from his CO
* Disobeying a lawful order from his noncommissioned officer (on six separate occasions)
* Damaging property of the U.S. Government of some value
* Breaking restriction

4.  On 15 May 1978, the applicant was notified that charges were pending against him for being AWOL from 20 December 1977 to 10 January 1978 and from 6 February to 11 May 1978.  He acknowledged receipt of the notification.  After consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  In his request for discharge, the applicant acknowledged he understood:

* if his request for discharge was accepted, he could be discharged under other than honorable conditions
* he could be deprived of many or all Army benefits as a result of the issuance of such a discharge
* he could be ineligible for many or all benefits administered by the Veterans Administration (VA)
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge

5.  The applicant submitted a statement in his own behalf asserting he:

* joined the Army because he didn't have anything better to do at the time
* finished high school in the Fort Carson stockade
* liked the Army at first, but he did not like always having someone looking over his shoulder
* did not like the rules and regulations
* did not like being treated like dirt
* did not like people who were prejudice against him because he was in the Army
* did not like the Army, period

6.  The appropriate authority approved his request for discharge on 12 June 1978 and directed the issuance of a discharge under other than honorable conditions.

7.  On 8 July 1978, the applicant was discharged under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  The DD Form 214 he received shows he had lost time on the following dates:

* 6 April through 11 April 1977
* 15 April through 17 April 1977
* 18 April through 19 July 1977
* 20 July through 17 November 1977
* 20 December 1977 through 9 January 1978
* 6 February through 10 May 1978

8.  His DD Form 214 also shows he completed 1 year, 6 months, and 27 days of total active service.

9.  A review of his records does not show he ever petitioned the Army Discharge Review Board for an upgrade of his discharge.





10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel:

	a.  Chapter 10 provides 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.  A discharge under other than honorable conditions would normally be furnished an individual who is discharged for the good of the service.  

	b.  Paragraph 3-7a 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 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  The documents he submitted have been considered.

2.  His records show he was discharged on 8 July 1978 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  His records also show that he submitted his request for discharge because he just did not like being in the Army.

3.  There is no evidence contained in his official record showing he went AWOL and refused to participate because his mother was ill and he was denied an opportunity to go home.  He submitted a statement with his request for discharge asserting he did not like the Army's rules, and regulations, or the way he was treated.  The fact that he was young when he enlisted and he is apologetic for his actions are not sufficient justification for upgrading his discharge.
4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100027701



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ABCMR Record of Proceedings (cont)                                         AR20100027701



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