IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100027986


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 his discharge be upgraded to Honorable.

2.  The applicant states:

* he apologizes for any "verbal misconduct"
* he proudly served 3 years in the Army, protecting his country with honor
* an "experience" occurred with which he disagreed and he acted out of control
* now he is sick and he needs help

3.  The applicant provides a handwritten letter dated 19 August 2010.

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 enlisted in the Regular Army (RA) for 3 years on 8 February 1971.  He completed Basic Combat Training (BCT) at Fort Polk, LA and was sent to Fort Bliss, TX for Advanced Individual Training (AIT).

3.  At Fort Bliss, he was absent without leave (AWOL) as follows:

* 27 April 1971 through 9 May 1971
* 2 June 1971 through 16 November 1972
* 4 December 1972 through 7 December 1972

4.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was given an Undesirably Discharge on 7 December 1972 after serving just 3 months and 28 days of creditable active Federal service and amassing 551 days of lost time due to AWOL.  The authority and reason for his discharge was chapter 10, Army Regulation 635-200 for the good of the service in lieu of trial by court-martial.

5.  Concealing his prior Undesirable Discharge, the applicant enlisted in the RA for 2 years on 17 April 1974.  He was sent to Fort Leonard Wood, MO for BCT.  He never completed BCT.  Instead he went AWOL as follows:

* 2 June 1974 through 14 June 1974
* 1 July 1974 through 7 October 1974

6.  The applicant was returned to military control at Fort Hood, TX and placed in the Personnel Control Facility.  Court-martial charges were preferred against him and, after consulting with legal counsel, he requested separation for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  In so doing, he acknowledged that he was guilty of the charge(s) against him, charges which authorized the imposition of a Bad Conduct or Dishonorable Discharge.  He also stated that he had no desire for rehabilitation or further military service, and that he understood the nature and consequences of the Undesirable Discharge that he might receive.  He submitted a statement in his own behalf saying his mother needed him at home.

7.  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 approved and he was separated once again with an Undesirable Discharge.  His DD Form 214 shows he had 3 months and 6 days of creditable active Federal service and 112 days of lost time due to AWOL.


8.  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 Veterans Administration 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.

9.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b states 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 HD.  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 requests an Honorable Discharge.

2.  The applicant misrepresents his service in stating he "proudly served 3 years" and "protected his country with honor."  He served just 3 months and never completed training.

3.  The applicant was an habitual AWOL; in his 1974 enlistment he also committed fraud by concealing information about his 1972 discharge.  Court-martial charges were appropriately filed against him.  His 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.  There is no indication that the request was made under coercion or duress.

4.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.  The type of discharge he was given was and still is appropriate.

5.  The ABCMR does not upgrade discharges solely for the purpose of qualifying for benefits.

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)                                         AR20100027986





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ABCMR Record of Proceedings (cont)                                         AR20100027986



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