IN THE CASE OF:	  

		BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100027950 


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 an honorable discharge based on Secretarial Authority.

2.  The applicant states that he was 16 years of age when he enlisted and he deliberately used an incorrect date of birth (DOB).  He goes on to state that he went to basic and advanced individual training (AIT) and was supposed to be trained in demolitions but it was discovered that he was color blind.  He continues by stating that he went home on leave, stayed too long, and got in trouble with a friend.  He also states he was returned to military control, told he was facing a long prison term, and he got scared and went absent without leave (AWOL).  He further states when he was returned to military control there was no court-martial action or other procedures.  He believes he was too young to understand what his options were at the time and contends that he was told his discharge would be upgraded after 6 months, which of course was not true.

3.  The applicant provides a State of New York, Department of Health, Certification of Birth showing his DOB as 8 May 1956, his Social Security Card, and his commercial driver license.

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 24 November 1972, the applicant enlisted in the Regular Army in Albany, New York for a period of 2 years.  He enlisted for the Regular Army enlistment option and he initialed the applicable enlistment documents acknowledging no other promises were made to him.  He indicated his DOB was 6 May 1954 at the time of enlistment and he used this DOB throughout his period of service.

3.  He completed basic training at Fort Dix, New Jersey and remained at Fort Dix to undergo AIT as a motor transport operator.

4.  He went AWOL on 5 March 1973 while in AIT and remained absent until he was apprehended by civil authorities and returned to military control on 21 May 1973.  He again went AWOL on 4 June 1973 and remained absent until he was apprehended by civil authorities (the Federal Bureau of Investigation) on 7 March 1974 and returned to military control at Fort Dix.  Charges were preferred against him for the two AWOL offenses on 15 March 1974.

5.  On 18 March 1974, 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.  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 elected not to submit a statement in his own behalf.

6.  On 15 April 1974, the appropriate authority (a major general) approved his request for discharge and directed that he be furnished an Undesirable Discharge Certificate. 

7.  Accordingly, he was discharged on 30 April 1974 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, with the issuance of an Undesirable Discharge Certificate.  He completed 5 months and 18 days of total active service and he had 353 days of lost time due to being AWOL.

8.  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.

9.  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 normally considered appropriate.  However, at the time the applicant was discharged an undesirable discharge was appropriate.

10.  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.

11.  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, he did not raise the issue of his age at the time and his contentions now are not sufficiently mitigating to warrant relief when compared to the length of his absence and the absence of mitigating circumstances at the time.  There is nothing in the available records to suggest that he did not understand the difference between right and wrong and 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)                                         AR20100027950



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ABCMR Record of Proceedings (cont)                                         AR20100027950



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