IN THE CASE OF:	  

		BOARD DATE:	  16 June 2011

		DOCKET NUMBER:  AR20100028620 


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 to general under honorable conditions.

2.  The applicant states he served in the Army for 15 months.  He states the death of his child caused him hardships he could not handle at the time.

3.  The applicant provides no 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 enlisted in the Regular Army on 23 April 1973.  He completed training as a light weapons infantryman.  He was advanced to pay grade E-2 on 23 August 1973 and pay grade E-3 on 18 December 1973.

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 12 August 1974 for being absent without leave (AWOL) from 21 July until 5 August 1974.

4.  On 23 September 1974, NJP was imposed against him for two incidents of failing to go to his appointed place of duty.

5.  On 11 October 1974, the applicant was convicted by a summary court-martial of being AWOL from 17 to 23 September 1974.

6.  The applicant's records show he was in debt to Army Emergency Relief and he signed an agreement to make payments in the amount of $12.50 per month until his debt of $145.00 was paid in full.

7.  The applicant's charge sheet is not contained in his military record.  However, after consulting with counsel he submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, on 18 October 1974.  In his request for discharge, the applicant acknowledged he understood:

* if his request for discharge were 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
* 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

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

* he made a lot of mistakes during his 18 months in the Army, which involved being broke due to Army debt
* he had a family to support and believed it was necessary to be removed from the Army
* his wife was 16 years old and living by herself
* there was little food at his house and he and his family had no car
* if he could be released from the Army, there was a job in Michigan he could get
* 
he believed the extortion charge against him was wrong because "the guy" owed the money and agreed to pay
* there was no way of proving his innocence, so the best thing for him to do was to get out of the Army as soon as possible
* his life was "messed up" and maybe it was due to his own fault
* any additional punishment would be unfair
* he had a child that died on 19 October 1973

9.  The appropriate authority approved his request for discharge on 8 November 1974 and directed the issuance of an undesirable discharge.

10.  On 13 November 1974, the applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulations 635-200, chapter 10.  He completed 1 year, 4 months, and 26 days of total active service.

11.  On 19 January 1979, the Army Discharge Review Board denied his request for an upgrade of his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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, the 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 to an individual who was discharged for the good of the service.

	b.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.

2.  There is no evidence in the available record showing he sought and was denied assistance through his chain of command with personal problems he was having at home.  He states he lost a child on 19 October 1973.  It is noted that his acts of misconduct did not begin until July 1974.  His record shows he was convicted by a summary court-martial and NJP was imposed against him on two separate occasions as a result of his acts of misconduct.

3.  He submitted a request for discharge in which he stated he wanted to be released from the Army to get a job so he could take care of his family.  He has not shown an error in the type of discharge he received.

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 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)                                         AR20100028620



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ABCMR Record of Proceedings (cont)                                         AR20100028620



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