IN THE CASE OF:	   

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110006798 


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 his wife was running around on him and he could not take leave; therefore, he went absent without leave (AWOL) to see her and find out what was going on.  He goes on to state that she was pregnant and he did not know if the child was his.  She had the baby and moved without telling him, so he went home to get his kids.

3.  The applicant provides a one-page letter explaining his application, copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), birth certificate, and Social Security Card.

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 Fairmont, West Virginia on 31 August 1967 for a period of 3 years and training as a construction and utilities specialist.  He indicated that he was single at the time of enlistment.

3.  He completed basic training at Fort Bragg, North Carolina and was transferred to Fort Leonard Wood, Missouri to undergo advanced individual training (AIT) as a construction and utilities specialist.

4.  On 5 December 1967, he went AWOL and remained absent in a desertion status until he was returned to military control at Fort Meade, Maryland on 
11 January 1968.

5.  On 7 February 1968, nonjudicial punishment (NJP) was imposed against the applicant for being AWOL from 5 December 1967 to 10 January 1968.

6.  On 10 June 1968, he was convicted by a special court-martial at Fort Meade of being AWOL from 18 March to 31 March 1968 and 10 April to 15 May 1968 and for escaping from confinement.

7.  On 1 July 1969, the applicant went AWOL and remained absent until he was arrested by civil authorities in Cumberland, Maryland on 15 October 1969.  He remained in the hands of civil authorities until 21 October 1969 until he was returned to military control at Fort Meade and charges were preferred against him for the AWOL offense.  

8.  On 23 October 1969, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – General), chapter 10, in lieu of trial by court-martial.  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 that he could receive an undesirable discharge and that he might be deprived of all benefits as a result of such a discharge.  He also acknowledged he had been advised not to accept an undesirable discharge expecting that it would later be changed to a general or an honorable discharge because the likelihood of that occurring was extremely remote.  He elected not to submit a statement in his own behalf.

9.  On 12 November 1969, the appropriate authority approved his request for discharge and directed that he be furnished an Undesirable Discharge Certificate.
10  Accordingly, on 12 November 1969, he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an undesirable discharge.  He completed 1 year, 5 months, and 12 days of total active service.  He also had 270 days of lost time.

11.  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 characterization of service he or she might receive.  An undesirable discharge was normally considered appropriate at the time of the applicant's discharge.

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.  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 the nature of his misconduct, his overall record of service, and the absence of mitigating circumstances.  His service simply did not rise to the level of a general discharge.


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)                                         AR20110006798



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ABCMR Record of Proceedings (cont)                                         AR20110006798



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