IN THE CASE OF:	  

		BOARD DATE:	    14 June 2011

		DOCKET NUMBER:  AR20100028874


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.

2.  The applicant states his discharge was altered and it is too harsh.

3.  The applicant provides as indicated below.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests a discharge upgrade.

2.  Counsel makes no statement.

3.  Counsel provides:

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Report of Separation from Active Duty) – Not Attached

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 16 June 1970.  He was honorably discharged on 14 December 1972 for the purpose of immediate reenlistment.  He reenlisted on 15 December 1972 for 5 years.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) as follows:

* 19740506 – 19740526		18 days
* 19741003 – 19741029		27 days
* 19741220 – 19750305		76 days

4.  On 30 April 1975, court-martial charges were preferred against the applicant for:

Charge
Article, UCMJ
Specification
Offense(s)
I
86
1
AWOL from 20 December 1974 to 6 March 1975


2
AWOL from 24 March 1975 to 21 April 1975
5.  On 23 April 1975, the applicant consulted with counsel and voluntarily requested 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 stated that he acknowledged he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge, and that he did not desire further rehabilitation, nor had he any desire for further military service.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.  It is not known whether he submitted  a statement in his own behalf.

6.  On 12 May 1975, the approving authority approved the applicant's request for discharge and directed he be issued an undesirable discharge (UD).  On 29 May 1975, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200 in lieu of trial by court-martial.

7.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 27 November 1978, denied his request.

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 (HD) 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 (GD) 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 a discharge upgrade.

2.  The applicant was AWOL on several occasions which rendered the quality of his service beneath the standards of acceptable conduct and performance of duty for Army personnel.  Further, his service was not sufficiently meritorious as to merit an HD, or even a GD.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations, with no indication of procedural errors which would have tended to jeopardize his rights.  The UD which he received was more than appropriate considering all the facts of the case.

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)                                         AR20100028874





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ABCMR Record of Proceedings (cont)                                         AR20100028874



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