IN THE CASE OF:	  

		BOARD DATE:	    9 August 2011

		DOCKET NUMBER:  AR20110003368 


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 a general discharge.

2.  The applicant states that he is 55 years of age and realizes that he messed up his duty and for this he is very sorry; however, he desires an upgrade of his discharge so that he can purchase a home.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 in Denver, CO on 27 December 1973 for a period of 3 years, training as a pioneer, and assignment to the
3d Armored Division in Europe.  

3.  He was transferred to Fort Polk, LA to undergo his basic training and on
20 February 1974 nonjudicial punishment was imposed against him under the provisions of Article 15, Uniform Code of Military Justice for failing to go at the time prescribed to his appointed place of duty.  

4.  He was transferred to his advanced individual training at Fort Leonard Wood, MO before being transferred to Germany on 10 May 1974 for assignment to an engineer company.

5.  The applicant departed Germany on ordinary leave on 30 November 1974 and was subsequently granted two extensions which resulted in his taking a
45-day leave.  He was to return to his unit on 8 January 1975; however, he failed to do so.  Accordingly, he was reported as being absent without leave (AWOL).

6.  The applicant surrendered to military authorities at Fort Carson, CO on
24 January 1975 and his unit requested his return to Germany.  The applicant again departed AWOL on 6 February 1975 and he remained absent until he was apprehended by civil authorities in Denver on 17 February 1975.  He was returned to military control at Fort Carson.

7.  He again went AWOL on 21 February 1975 and he remained absent until he was returned to military control at Fort Carson on 24 February 1975.  He was subsequently placed in confinement, where charges were preferred against him for the AWOL offenses.

8.  On 25 February 1975, after consulting with defense counsel, the applicant submitted a request for 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 his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged he understood he could receive an undesirable discharge and that he might be deprived of all benefits as a result of such a discharge.  He further stated he had been advised not to accept an undesirable discharge in the expectation that it would later be changed to a general or an honorable discharge because the likelihood of that ever occurring was extremely remote.  Additionally, he was advised of the procedures for applying to the Army Discharge Review Board (ADRB) and the ABCMR for an upgrade of his discharge.
9.  On 7 April 1975, the appropriate authority (a major general) approved his request for discharge under the provisions of Army Regulation 635-200,
chapter 10, with issuance of an Undesirable Discharge Certificate.

10.  Accordingly, he was discharged on 14 May 1975.  He completed 1 year, 3 months, and 14 days of total active service with 34 days of time lost due to being AWOL.

11.  There is no evidence in the available record that shows he ever applied to the ADRB for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  An undesirable discharge was considered appropriate at the time.

13.  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.

14.  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'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.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to his repeated misconduct, his overall record of service, and the absence of mitigating circumstances.  Additionally, the Board does not upgrade discharges simply for the purpose of qualifying individuals for veteran's benefits.  Accordingly, his service simply did not rise to the level an honorable or a general discharge.

4.  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)                                         AR20110003368



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ABCMR Record of Proceedings (cont)                                         AR20110003368



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