IN THE CASE OF:	  

		BOARD DATE:	  1 September 2011

		DOCKET NUMBER:  AR20110002944 


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 to a general discharge.

2.  The applicant states he was unable to adjust to military life and requested a discharge for the good of the Army and himself.  He further states he needs benefits and more schooling.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 military records show he enlisted in the Regular Army on 26 August 1971.  He completed training and was awarded the military occupational specialty of 11B (Light Weapons Infantryman).  The highest rank/grade he attained was specialist four/E-4.

3.  He accepted nonjudicial punishment (NJP) on 23 August 1972 and on 5 October 1972 for failing to go at the prescribed time to his appointed place of duty.

4.  Summary Court-Martial Order Number 164, dated on 21 November 1972, shows he was convicted of being absent without leave (AWOL) during the period on or about 1 November to 8 November 1972.

5.  The charge sheet is not available, but on 2 March 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.

6.  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 (VA), and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He elected to submit a statement on his own behalf.  In his statement he wrote that his recruiter had told him that if he enlisted he could learn a carpenter trade, complete his high school education, complete one to two years of college, and he would only work 8 hours per day (40 hours per week).  He stated that he had never worked less than 10 hours a day and at least 1 day out of every other weekend.  He further stated he had a perfect military record regardless of the false information given by his recruiter until he received his first NJP for being late for guard duty.  He added that after that time he had not been able to stay out of trouble.  He further acknowledged that he had been advised of the basis for his contemplated trial by court-martial under 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.
7.  An endorsement to the request for discharge for the good of the service for the applicant, dated 23 March 1973, indicated the applicant was pending court-martial for being AWOL 73 days.

8.  On 5 April 1973, the separation authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed the issuance of an undesirable discharge.

9.  On 12 April 1973, he was discharged accordingly.  The DD Form 214 he was issued shows he completed a total of 1 year, 4 months, and 29 days of creditable active service with 80 days of lost time.

10.  The Army Discharge Review Board denied the applicant's request for an upgrade of his undesirable discharge.

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(s) charged, the 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.  

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.  While he contends he was unable to adjust to the military, the evidence shows he performed honorably for nearly the first year of service prior to the onset of his repeated offenses.  In his statement in conjunction with his request for discharge he indicated his recruiter gave him false information about working conditions in the military.  However, this does not excuse the applicant's misconduct.

2.  He accepted NJP on two occasions for failing to go at the prescribed time to his appointed place of duty.  He was also convicted of being AWOL for 7 days and was pending court-martial for an additional period of AWOL of 73 days.

3.  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, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

4.  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 a general discharge.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  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)                                         AR20110002944



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110002944



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1