IN THE CASE OF:	

		BOARD DATE:	 11 August 2011

		DOCKET NUMBER:   AR20110003242


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 that his discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states that the Army was not all that bad and he had a hard time doing state-side duty.  He volunteered to go to Vietnam but he was turned down because he was only 17 years old.  He recalls he received one Article 15, one summary court-martial, and he's not sure how many special courts-martial.  He now regrets signing the discharge papers.  He did not know he could request his discharge be upgraded after fifteen years. 
 
3.  The applicant provides copies of:

* His DD Form 214 (Armed Forces of the United Sates Report of Transfer or Discharge) 
* a letter from his state representative
* a letter from a clergyman
* a letter from the Army Review Boards Agency, dated 3 January 2011
* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States, dated 27 July 2010

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 13 February 1967 at the age of 17.  He was awarded military occupational specialty 55B (Ammunition Storage Specialist).

3.  On 12 June 1967, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent from his unit from 29 May to 12 June 1967.  His punishment was restriction to the company area for 14 days and extra duty for 14 days.  He did not appeal the punishment.

4.  Summary Court-Martial Order Number 501, Headquarters, Special Troops Regiment, Fort George C. Meade, MD, dated 6 September 1967, announced he pled guilty and was found guilty of two specifications of being absent from his unit.  His was sentenced to hard labor for 45 days and forfeiture of $60 per month for 1 month. 

5.  He was punished by special court-martial as follows:

	a.  Special Court-Martial Order Number 232, Headquarters, Special Troops Regiment, Fort George C. Meade, MD, dated 20 February 1968, announced he pled guilty and was found guilty of two specifications of being AWOL.  He was sentenced to be confined at hard labor for 6 months and to forfeit $60.00 per month for 6 months.

	b.  Special Court-Martial Order Number 651, Headquarters, Special Processing Battalion (Provisional), Fort George C. Meade, MD, dated 19 August 1968, announced he plead guilty and was found guilty of being AWOL from 
5 May to 17 July 1968.  He was sentenced to be confined at hard labor for 
6 months and to forfeit $68.00 per month for 6 months.

6.  On 28 February 1969, charges were preferred under the UCMJ for violation of Article 86 for being AWOL from on or about 16 January to 21 February 1969.

7.  On 11 March 1969, the applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of being discharged under other than honorable conditions, 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, under the provisions of Army Regulation 635-200, chapter 10.

8.  In his request for discharge, the applicant indicated that he understood that if his discharge request was approved, 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.

9.  On 5 May 1969, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate).  On 5 May 1969, the applicant was discharged accordingly.  He had completed a total of 7 months and 27 days of creditable active duty service and had accrued 571 days of time lost due to AWOL and confinement.

10.  On 20 September 1979, the Army Discharge Review Board denied his request for an upgrade of his discharge.

11.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days, is a dishonorable discharge and confinement for 1 year.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides, in pertinent part, 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  At the time, an undesirable discharge was normally given.

	b.  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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  The character of the discharge is commensurate with his overall record.

2.  There is no available evidence, and the applicant did not provide sufficient evidence, to justify granting his request.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100019466



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ABCMR Record of Proceedings (cont)                                         AR20110003242



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