IN THE CASE OF:	  

		BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100028240 


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 undesirable discharge be upgraded.

2.  The applicant states he had a hard time with his family and had to take care of his mother before she died.

3.  The applicant provides no additional evidence in support of his application.

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.  He enlisted in the Regular Army on 12 October 1973 for a period of 2 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 05F (Radio Teletypewriter Operator).

3.  On 11 December 1973, he was assigned to Company B, 3rd Battalion, School Brigade, U.S. Army Signal School, Fort Gordon, GA.

4.  On 18 July 1974, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from on or about 5 June to 16 July 1974.

5.  On 2 August 1974, he submitted a statement voluntarily and of his own free will in which he indicated that he could not stand the Army and he couldn't be rehabilitated.  He knew he would be getting an undesirable discharge but he didn't care.  His counsel advised him that he had 72 hours to consider requesting a chapter 10 discharge.  He stated he wanted to put in his request in for discharge now.

6.  The applicant consulted with counsel and voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* guilty of the offense with which he was charged
* making the request of his own free will
* advised he may be furnished an Undesirable Discharge Certificate
* advised he could submit statements in his own behalf

7.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

8.  On 29 August 1974, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of an Undesirable Discharge Certificate.

9.  On 11 September 1974, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations), for the good of the service with an undesirable discharge.  He had completed 9 months and 
19 days of creditable active service and he had 41 days of lost time.

10.  On 6 June 1977, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He stated he went AWOL because his mother had broken her ribs in a fight.  On 27 February 1979, the ADRB denied his request for an upgrade to his undesirable discharge.

11.  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.

12.  Army Regulation 635-200 states 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.  

13.  Army Regulation 635-200 states 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.  In his ADRB request he stated that he went AWOL because his mother had broken her ribs in a fight.  However, he now contends he had to take care of his mother before she died.  Nevertheless, he has not submitted any substantive evidence to support either contention.  In his statement of 2 August 1974 he indicated he hated the Army and couldn't be rehabilitated.  Therefore, it appears his goal was to be discharged.

2.  The applicant voluntarily requested discharge, admitted guilt to the AWOL offense for which he was charged, and acknowledged he understood he could receive an undesirable discharge.  His request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial was administratively correct and in conformance with applicable regulations.

3.  The type of discharge and the reason for separation were appropriate considering all the facts of the case.  The available evidence contains no indication of procedural or other errors that would have jeopardized his rights.

4.  He had been in the Army for less than 8 months when he decided to go AWOL and he remained AWOL for 41 days.  He stated that he did not care if he received an undesirable discharge.

5.  His conduct clearly shows his period of service to be unsatisfactory.  Therefore, there is an insufficient basis to upgrade his discharge to either 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)                                         AR20100028240



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100028240



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1