IN THE CASE OF:	  

		BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20110001862 


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 volunteered to join the Army.  He states he wanted to join the infantry but his recruiter falsified documents to rush him to basic training and he was put in the Army as a medic.  He states he could not complete the training at medic school due to his lack of reading skills.  He states his personnel file is incorrect in that it indicates he has a General Educational Development (GED) high school equivalency, which he did not have.  He further states he was not given appropriate counseling or a chance to change his military occupational specialty (MOS).  He further states that his senior leadership was not helpful and even suggested he go absent without leave (AWOL) in order to be given a discharge for the good of the service rather than reassign him to infantry training.  He adds that he was only 17 years old, uneducated, and away from home for the first time.

3.  The applicant provides three 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 was born on 27 January 1955.  He enlisted in the Regular Army on 17 February 1972.  He did not complete initial entry training and was not awarded an MOS.  The highest rank/grade he held was private/E-1.

3.  The DD Form 398 (Statement of Personal History) completed at the time of the applicant's enlistment shows he had a GED.  This form was certified by the applicant with his signature.

4.  He accepted nonjudicial punishment (NJP) for being AWOL during the period 31 March to 10 April 1972.

5.  On 19 March 1973, he was charged with being AWOL during the period 1 August 1972 to 4 January 1973.

6.  On 12 January 1973, 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 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.

7.  He further acknowledged he understood if his discharge request was accepted, 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 undesirable discharge.  He also elected to submit a statement on his own behalf; however, his statement is not available for review.  He acknowledged that he had been advised of the basis for his contemplated trial by court-martial under the circumstances which could lead to a bad conduct or dishonorable discharge, of the effects of this request for discharge, and the rights available to him.  He waived his rights in regard to this request.

8.  An endorsement to the request for discharge for the good of the service for the applicant, dated 20 March 1973, indicated that during the commanding officer's interview with the applicant that he indicated he "went AWOL because his mother was sick."

9.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at that time shows he was discharged for the good of the service on 9 April 1973 and was given an undesirable discharge.  He completed 8 months and 7 days of total active service with 166 days of time lost.

10. 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.

11.  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.

12.  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.

13.  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 accepted NJP for being AWOL for approximately 9 days.  He was also charged with being AWOL for an additional period of approximately 132 days for which court-martial charges were preferred.

2.  He contends that he was rushed into basic training, lacked the reading skills to complete medic training, and was not given good advice by his senior leadership.  However, this does not excuse the applicant's lengthy periods of AWOL.

3.  His DD Form 398 which he certified with his signature shows he had a GED at the time of his enlistment.  Therefore, his records correctly show he had a GED.

4.  He voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  In order to be discharged under chapter 10 he would have voluntarily requested discharge in lieu of a trial by court-martial.  At the time of his discharge an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

5.  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.  Therefore, he is not entitled to an honorable or general discharge.

6.  Records show he was 17 years old at the time he went AWOL.  However, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

7.  His character and post-service conduct as attested to in the supporting statements are noteworthy.  However, his character of service is based on his performance and conduct during the period in which he served.  He has not provided any evidence to mitigate the misconduct that he committed during his period of active service; therefore, he has not established a basis to justify upgrading his discharge.  

8.  In view of the foregoing, there is no basis for granting his 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)                                         AR20110001862



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ABCMR Record of Proceedings (cont)                                         AR20110001862



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