IN THE CASE OF:	  

		BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110004387 


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 his undesirable discharge be upgraded. 

2.  The applicant states:

* He enlisted with a guarantee to stay stateside for 18 months but he was being shipped to Germany in 15 months
* His military record was clean
* He was an honor graduate of his military occupational specialty (MOS) 31N (tactical circuit controller) and promoted to private first class in less than 5 months
* He was told he could upgrade his discharge after six months

3.  The applicant provides:

* Honor Graduate diploma
* Installation clearance record
* DD Form 214 (Report of Separation from Active Duty)
* Reenlistment data form
* Enlisted Efficiency Report (EER)

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 enlistment contract shows he enlisted for the CONUS [Continental United States] station of choice enlistment option (Fort Gordon, GA for MOS 31N).  He acknowledged that he was guaranteed a minimum assignment of 12 months to the unit indicated on his enlistment contract after completion of training.  He enlisted in the Regular Army on 19 September 1973 for a period of 3 years.  He completed basic combat training at Fort Leonard Wood, MO.  He was assigned to Fort Gordon, GA on 20 November 1973 for advanced individual training (AIT) in MOS 31N (5-week course).  Upon completion of AIT, he was assigned to the 385th Signal Support Company at Fort Gordon, GA.  He attained the rank of specialist four.  

3.  Permanent change of station orders, dated 4 November 1974, show he was ordered to duty in Germany with a reporting date of 13 January 1975.

4.  His DA Form 137 (Installation Clearance Record) shows he was scheduled to depart Fort Gordon, GA on 13 December 1974 for his new duty station.

5.  On 13 January 1975, the applicant absented himself from his unit with intent to remain away permanently and remained so absent in desertion until 4 October 1976.  On 7 October 1976, charges were preferred against the applicant for desertion.  Trial by general court-martial was recommended.

6.  On 8 October 1976 after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the VA, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated:

* The Army broke his enlistment contract and he wanted to get out
* His record was good or perfect for 17 months
* He was an honor graduate from AIT
* He did not have any Article 15s
* He had an EER which was good

7.  On 5 November 1976, the separation authority approved the applicant's request for discharge and directed the issuance of an undesirable discharge.

8.  He was accordingly discharged on 5 November 1976 for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He had 630 days of lost time.  His DD Form 214 shows he was separated from the service on temporary records and a Soldier's affidavit.

9.  There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations. 

10.  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, 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 to an individual who was discharged for the good of the service.

11.  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.

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.
13.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  Although he contends he enlisted with a guarantee to stay stateside for 
18 months, his enlistment contract indicates that he would serve a minimum of 12 months at Fort Gordon, GA and it appears he was there 12 months. 

2.  He contends he was told he could upgrade his discharge after 6 months.  However, a discharge upgrade is not automatic.

3.  His record of service included 630 days of lost time due to desertion.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

4.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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)                                         AR20110004387





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ABCMR Record of Proceedings (cont)                                         AR20110004387



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