BOARD DATE: 20 September 2011
DOCKET NUMBER: AR20110005320
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 undesirable discharge be upgraded to a general discharge.
2. The applicant states, in effect, that he admits that he went absent without leave (AWOL) two different times but he was young and inexperienced in the world. He goes on to state that he was denied the opportunity to complete his General Education Development (GED) exam the first time and was blamed for keying the first sergeants car, which he did not do. He continues by stating that the first sergeant also denied his request for an early out.
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 applicants 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 applicants 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 Knoxville, Tennessee on 23 October 1973 for a period of 3 years and assignment to the 101st Airborne Division. He completed his basic training at Fort Knox, Kentucky and his advanced individual training as a powerman at Fort Campbell, Kentucky and remained assigned to Fort Campbell for his only duty assignment.
3. On 3 July 1974 he was convicted pursuant to his plea by a summary court-martial of being absent without leave (AWOL) from 4 April 1974 to 3 May 1974. He was sentenced to a reduction to the pay grade of E-1, a forfeiture of $150.00 and restriction for 45 days.
4. The applicant again went AWOL on 9 September 1975 and remained absent until he was returned to military control on 30 November 1975 and charges were preferred against him for the AWOL offense.
5. On 29 December 1975, after consulting with defense counsel, the applicant submitted a request for discharge under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request. He also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged he
understood he could receive an under other than honorable conditions discharge and he might be deprived of all benefits as a result of such a discharge. He also elected to submit a statement or explanation in his own behalf whereas he stated that he could not adapt to military life and if he was returned to duty he would go AWOL again.
6. On 13 January 1976, the appropriate authority (a brigadier general) approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate.
7. Accordingly, on 16 January 1976, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge. He completed 1 year, 11 months and 3 days of total active service.
8. There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations.
9. 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 admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or
she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive. A discharge under other than honorable conditions is normally considered appropriate.
10. 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. In doing so he admitted guilt to the charges against him.
3. The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances, especially given the nature of the charges against him, his undistinguished record of service, and the absence of mitigating circumstances at the time. His service simply did not rise to the level of a general or an honorable discharge.
4. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant failed to submit evidence that would satisfy this requirement.
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.
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