IN THE CASE OF:	  

		BOARD DATE:	    19 July 2011

		DOCKET NUMBER:  AR20110000991 


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 he was newly married, his wife was sick, and he needed to be out of the military to help her.  He adds that he was drafted as a young boy and was immature.

3.  The applicant provides no additional evidence in support of his 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.  His records show he was born on 7 October 1952.  His military records show he was inducted into the Army of the United States on 7 May 1973.  He did not complete initial entry training and was not awarded a military occupational specialty.  The highest rank/grade he attained was private/E-1.

3.  He accepted nonjudicial punishment (NJP) on 16 July 1973 for striking another Soldier.

4.  On 7 November 1975, he was charged with being absent without leave (AWOL) during the periods 28 September to 29 November 1973 and 15 August 1974 to 30 October 1975.

5.  On 10 November 1975, having consulted with legal counsel, 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, 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.

6.  He further 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 Veteran's 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 chose not to submit a statement in his own behalf with his request.

7.  On 18 November 1975, the separation authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed that he be given an undesirable discharge.

8.  On 1 December 1975, he was discharged accordingly.  The DD Form 214 he was issued shows he completed 1 year, 2 months, and 5 days of active service.

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.  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.

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.  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.  He accepted NJP for striking another Soldier.  He was charged with being AWOL for approximately 503 days.

2.  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.  The record contains no indication of procedural or other errors that would have jeopardized his rights.  Therefore, he was properly and equitably discharged and he is not entitled to an honorable or a general discharge.

3.  The Army has policies and procedures to deal with hardships.  The applicant has not submitted any evidence to show he properly requested assistance due to his wife being sick or provided an explanation as to why he was AWOL for 503 days.  However, even if he did, it would not form the basis to upgrade his discharge.

4.  Records show he was nearly 21 years old at the time he was AWOL the first time.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

5.  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)                                         AR20110000991



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ABCMR Record of Proceedings (cont)                                         AR20110000991



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