IN THE CASE OF:	

		BOARD DATE:	    7 July 2011

		DOCKET NUMBER:  AR20100030545 


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 undesirable discharge to an honorable discharge.

2.  The applicant states he was kicked out because the Army thought he was gay even though there was no proof.  He claims he has been haunted by this his whole life and especially now since his son has deployed to Iraq.

3.  The applicant provides no documentary evidence in support of the application. 

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 7 March 1969.  He completed basic training at Fort Bragg, NC and he was assigned to Fort Knox, KY to attend advanced individual training (AIT).  His record confirms he was never advanced above the rank/grade of private (PV1)/E-1.

3.  The applicant’s record documents no acts of valor or significant achievement.  It does reveal a disciplinary history that includes the following:

* Accrual of 61 days of time lost due to three separate periods of being absent without leave (AWOL) between 4 June and 30 November 1969, and one period of confinement between 11 July and 30 July 1969
* Acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 17 June 1969 for being AWOL from 4 through 13 June 1969
* Special Court-Martial (SPCM) conviction for violating Article 86
(2 Specifications) by twice being AWOL between 4 June and 11 July 1969

4.  On 10 December 1969, the applicant underwent a separation physical examination.  The Standard Form (SF) 88 (Report of Medical Examination) documenting this examination shows he received all normal findings in the clinical evaluation portion of the examination, it lists no defects or diagnosed conditions, and there are no disqualifying medical conditions documented.  The examining physician assigned a physical profile of 111111 and found the applicant qualified for retention/separation.

5.  On 10 December 1969, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating Article 86 of the UCMJ by being AWOL from 17 November through 1 December 1969 and for violating Article 95 of the UCMJ by escaping from lawful confinement on
17 November 1969.

6.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial and the maximum punishment authorized under the UCMJ; of the possible effects of an under other than honorable conditions discharge; and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-marital.


7.  In his request for discharge, the applicant acknowledged that as a result of his request, he could receive an Undesirable Discharge Certificate; that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA); and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  On 22 December 1969, the separation authority approved the applicant’s request and directed he receive an Undesirable Discharge Certificate.  On
22 December 1969, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he completed 7 months and 15 days of total active service with 61 days of time lost due to AWOL and confinement.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15 year statute of limitations.

10.  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 VA 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.  

11.  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.

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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention he was unjustly discharged because the Army thought he was gay has been carefully considered.  However, there is insufficient evidence to support this claim.  There is no evidence of record indicating the applicant was accused of or charged with being a homosexual.

2.  The evidence of record confirms the applicant was charged with the commission of offenses (AWOL and escaping custody) punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The undesirable discharge received by the applicant was normal and appropriate under the regulatory guidance.  His record documents no acts of valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge, nor does it support an upgrade of his discharge at this time.

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)                                         AR20100030545



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ABCMR Record of Proceedings (cont)                                         AR20100030545



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