BOARD DATE:	    23 June 2011

		DOCKET NUMBER:  AR20100029538


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, in effect, an upgrade of his undesirable discharge (UD).

2.  The applicant states in 1970 he was told that his UD would automatically be changed to a general discharge after 6 months.  However, he checked in 1996 and he found out it had not been changed.  

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's record shows he enlisted in the Regular Army for a 3-year term, on 28 January 1969.  He completed basic combat training at Fort Lewis, WA and reported to Company B, 2nd Battalion, 4th Brigade at Fort Ord, CA for advanced individual training (AIT).  However, he did not complete AIT and he was not awarded a military occupational specialty.

3.  His records show he was reported in an absent without leave (AWOL) status from:   

* 19 May to 18 June 1969
*  20 June to 13 August 1969
* 16 August to 28 September 1969

4.  At Fort Ord, CA, he was charged with 3 specifications of being AWOL from 
19 May to 17 June 1969, 20 June to 12 August 1969, and 16 August to
27 September 1969.  He pled not guilty to the specifications and the Charge.
On 30 October 1969, a special court-martial found him guilty of the specifications and the Charge.  The Court sentenced him to reduction to the lowest enlisted grade, confinement at hard labor for 5 months, and a forfeiture of $40.00 pay for 5 months.  On 24 November 1969, the sentence was approved.

5.  On 1 December 1969, he was transferred from the post stockade at Fort Ord, CA to the Correctional Training Facility at Fort Riley, KS.  On 28 January 1970, the unexecuted portion of his sentence was remitted and the applicant was placed in a trainee status to complete AIT.

6.  The applicant was in an AWOL status from 29 January to 12 June 1970.  On 15 June 1970, charges were preferred against him for this period of AWOL.  However, before the charges were adjudicated he went AWOL from 
20 to 21 June 1970 and this offense was added to the 15 June 1970 charge.

7.  On 25 June 1970, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

8.  In his request for discharge he acknowledged that he understood by requesting a discharge he was admitting guilt to the charge(s) against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  On 6 August 1970, the separation authority approved his request for discharge and directed that he be issued a UD.  On 18 August 1970, he was discharged accordingly.  His DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge) confirms he completed 4 months and 13 days of total active service.  He also had 433 days of lost time due to being AWOL and in confinement.

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

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a UD was normally considered appropriate at the time.

12.  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 request for an upgrade of his UD has been carefully considered; however, there is insufficient evidence to support this request.  

2.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  


3.  His records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.

4.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

5.  Based on the foregoing, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to 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 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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20100029538



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