IN THE CASE OF:	  

		BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100029292 


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.

2.  The applicant states that he was scheduled to go to the field for 2 weeks of training as the time approached for the birth of their child.  He states that they lived off post and his wife didn't drive.  He states that seeing no other recourse, he went absent without leave (AWOL) until after their baby was born.  He adds that when he went back and turned himself in he was given the option of serving in prison or taking an undesirable discharge.  He states that he was told this discharge simply meant that he and the Army were not compatible with no one really at fault.  He further adds that upon signing the discharge paperwork he learned that he had lost all rights and benefits and it was his fault.  He states that since his discharge he is a preacher of God's Word, he has pastored five churches and hundreds of people, he is bonded to marry people, and he owns a small business licensed through the state of Kentucky. 

3.  The applicant provides two letters of reference.

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 29 June 1974.  He completed initial entry training and he was awarded military occupational specialty 62K (grader operator).  The highest rank/grade he attained was private first class (PFC)/E-3.

3.  Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record) shows he was AWOL during the period 8 June to 9 August 1976.

4.  His complete discharge packet is not contained in the available records.  However, his record shows that on 13 August 1976 he voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He acknowledged that he understood he could request a discharge for the good of the service because charges had been preferred against him under the Uniform Code of Military Justice (UCMJ), which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he was making the request of his own free will and he was not subjected to coercion with respect to his request for discharge and that he had been advised of the implications attached to his request.  He further acknowledged that by submitting his request for discharge, he was admitting to being guilty of a charge against him or of a lesser included offense(s) therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge.

5.  He consulted with counsel prior to completing his request for discharge and he was advised of his rights.  He acknowledged he understood if his discharge request was approved, he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of an under other than honorable 


conditions discharge.  He indicated he was submitting a statement in his own behalf with his request; however, his statement is not available for review.

6.  On 27 August 1976, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an undesirable discharge.

7.  On 31 August 1976, the applicant was discharged accordingly.  The DD Form 214 he was issued at that time shows he completed a total of 2 years and 1 day of creditable active service with 63 days of time lost.

8. 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.

9.  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.  

10.  Army Regulation 635-200, 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.

11.  Army Regulation 635-200, 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.  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's record shows he was AWOL for 63 days for which court-martial charges were preferred.  He voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  In doing so, he admitted guilt to the charge or of a lesser included offense(s) which authorized the imposition of a bad conduct or dishonorable discharge.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  Therefore, he was properly and equitably discharged.  The record contains no indication of procedural or other errors that would have jeopardized his rights.

2.  The applicant contends he had no recourse but to go AWOL due to the approaching birth of his child when he was scheduled to attend 2 weeks of field training.  The Army has policies and procedures to deal with hardships.  The applicant has not submitted any evidence to show he properly requested assistance or provided an explanation as to why he was AWOL for 63 days, thereby intentionally avoiding a scheduled 2-week period of training.  However, even if he did, it would not form the basis to upgrade his discharge.

3.  While he provided letters of support indicating he is successfully serving in his community, these are not a sufficient basis to upgrade a properly issued discharge. 

4.  In view of the foregoing, there is no basis for granting the 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)                                         AR20100029292



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ABCMR Record of Proceedings (cont)                                         AR20100029292



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