IN THE CASE OF:	  

		BOARD DATE:	    8 September 2011

		DOCKET NUMBER:  AR20110003635 


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.  He states that everything was alright when he entered the Army until he was not allowed to go overseas.  He was the only kid in his family and he had no one to sign for him.  He was told a long time ago to try to get his discharge upgraded. 

3.  He provides no additional evidence.

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’s military records show he enlisted in the Regular Army on 30 November 1968, for 3 years, in pay grade E-1.  He did not complete advanced individual training; therefore, he was not awarded a military occupational specialty (MOS). 

3.  On 25 April 1969, he was convicted by a special court-martial of one specification of being absent without leave (AWOL) from 5 January to 9 April 1969.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $65.00 pay for 6 months.  His sentence was approved on 6 May 1969 and ordered duly executed.  

4.  On 24 July 1969, he accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 10 to 15 July 1969.

5.  On 28 October 1969, he was convicted by a special court-martial of one specification of being AWOL from 2 August to 11 September 1969.  He was sentenced to confinement at hard labor for 3 months, a forfeiture of $82.00 pay for 6 months, and reduction to pay grade E-1.  His sentence was approved on
5 November 1969 and ordered duly executed.  

6.  On 29 November 1969, he again departed AWOL and he returned to military control on 12 February 1970.  

7.  Although a charge sheet is not available for review with this case, it appears that subsequent to his return to military control his command preferred court-martial charges against him for at least one specification of being AWOL. 

8.  On 10 March 1970, the applicant’s unit commander, after a thorough review of the applicant’s performance since being assigned to that unit, his past record, length of absence and graveness of the offense, and observation of his adverse attitude toward the military, stated it was his opinion that the applicant should be discharged for the good of the service in lieu of a court-martial.

9.  On 11 March 1970, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He further acknowledged he understood as a result of the issuance of such a discharge he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected not to submit a statement in his own behalf.

10.  On 12 March 1970, the applicant’s battalion commander recommended approval of the applicant’s request for discharge with the issuance of an undesirable discharge.

11.  On 17 March 1970, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of an Undesirable Discharge Certificate.

12.  On 30 March 1970, he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial, with an Undesirable Discharge Certificate.  He was credited with completion of 4 months and 15 days of net active service and 232 days of time lost.

13.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 10 states 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.  The separation authority may direct a general discharge if such a discharge is merited by the Soldier's overall record.  An undesirable discharge was normally considered appropriate at the time.

14.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his undesirable discharge was carefully considered.  However, the evidence of record shows he did not complete the training to be awarded an MOS.  He was punished under Article 15 and convicted by two special courts-martial of being AWOL.  He was also credited with having 232 days of time lost.

2.  The applicant appears to have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His character of service is appropriate based on the facts of the case and his discharge accurately reflects his overall record of service.

3.  The applicant's unit commander opined that based on the applicant’s current performance, past record, length of absence, and his adverse attitude toward the military service he should be discharged for the good of the service in lieu of a court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  He also acknowledged he understood he could be furnished an Undesirable Discharge Certificate.  He was discharged accordingly on 30 March 1970.

4.  He has provided no evidence or a convincing argument to show his discharge should be upgraded and his military record contains no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable or a general discharge.

5.  Without evidence to the contrary, it appears his administrative separation action was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  

BOARD VOTE:

____X___  __X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20110003635



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ABCMR Record of Proceedings (cont)                                         AR20110003635


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