BOARD DATE:	  7 June 2011

		DOCKET NUMBER:  AR20100028644 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.  

2.  He states he served his 2 years and enjoyed it.  He went absent without leave (AWOL) to work so he wouldn't lose his home.  He didn't make enough money to do that with Army pay.  He would like his record to show he served honorably.  

3.  He provides no documentation in support of his request.

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 was inducted into the Army of the United States on 23 April 1969.  He completed initial entry training and he was awarded military occupational specialty 70A (Clerk).

3.  Special Court-Martial Order Number 1167, issued by Headquarters and Headquarters Command, U.S. Army Training Center, Infantry, Fort Ord, CA, dated 7 October 1970, shows he was found guilty of being AWOL from 15 May to 10 August 1970.  He was sentenced to restriction for 30 days and reduction to private first class (PFC)/E-3.

4.  A DD Form 458 (Charge Sheet), dated 19 March 1971, shows he was charged with being AWOL from 5 October 1970 to 8 February 1971.

5.  On 23 March 1971, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel),
chapter 10, for the good of the service - in lieu of trial by court-martial.  Prior to submitting his request, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge and the rights available to him.

6.  In his voluntary request for discharge, he indicated he understood that if his request was accepted he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further acknowledged he understood that as a result of such a discharge, he would be deprived of many or all Army benefits, 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 law, and he could encounter substantial prejudice in civilian life.

7.  A Statement of Interview shows an officer interviewed him on 23 March 1971.  The officer stated the applicant refused to return to duty and had stated he would continue to go AWOL until his financial problems were resolved.  The officer indicated the applicant went AWOL to make payments on his house so he wouldn't lose it.  In his recommendation, the officer stated the applicant had been a problem to the Army in the past and he would continue to be so in the future.  He recommended the applicant be discharged as he had requested.

8.  On 21 April 1971, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 23 April 1971, he was discharged accordingly.  He completed 1 year, 4 months, and 27 days of total active service with 216 days of time lost due to being AWOL.


9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  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, 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.

	b.  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.

	c.  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 evidence of record does not support the applicant's request for upgrade of his discharge.


2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

3.  His record of service shows 216 days of time lost due to AWOL and a conviction by a special court-martial for being AWOL.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either an honorable or a general discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100028644



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ABCMR Record of Proceedings (cont)                                         AR20100028644



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