IN THE CASE OF:	  

		BOARD DATE:	    13 October 2011

		DOCKET NUMBER:  AR20110009390 


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, in effect, an upgrade of his undesirable discharge.

2.  The applicant states, in effect, that he:

* was tricked into getting out of the military, he was young and scared
* was told he could return to the military if he stayed out of jail for 2 years 
* volunteered for the Army so he would not be drafted
* should have been discharged under chapter 13 with an honorable discharge
* has no benefits because of his undesirable discharge

3.  The applicant provides no additional evidence in support of his request.

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 records show he enlisted in the Regular Army, at age 17, for 3 years on 7 December 1973.  He completed the training requirements and he was awarded military occupational specialty 94B (Cook).  The highest grade he attained was pay grade E-3.

3.  On 26 March 1976, his immediate commander initiated court-martial charges against him for being AWOL on the following dates which totaled 220 days:

* 740918-740922 (5 days)
* 741227-741229 (3 days)
* 741231-750108 (9 days)
* 750221-750312 (20 days) in confinement
* 750903-750929 (27 days) 
* 751018-760320 (154 days) dropped from rolls of the Army on 751018
* 760324-760324 pretrial confinement

4.  On 26 March 1976, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the possible effects of a request for discharge, and of the procedures and rights available to him.  Following consultation with legal counsel, he requested 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.

5.  The applicant's request for discharge shows he acknowledged he was voluntarily making the request of his own free will, he had not been subjected to any coercion, and he had been advised of the implications that were attached to his request.  He also acknowledged he understood by requesting a discharge he was admitting guilt to the charges against him or to a lesser-included offense that also authorized the imposition of a bad conduct discharge.  He further acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He did not submit a statement in his own behalf.




6.  On 8 April 1976, his immediate commander recommended approval of his request for discharge with the issuance of an Undesirable Discharge Certificate.

7.  On 13 April 1976, his intermediate commander recommended approval of his request with the issuance of an Undesirable Discharge Certificate.

8.  On 15 April 1976, the separation authority approved his request for discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200, and directed the issuance of an undesirable discharge.  The applicant was accordingly discharged on 19 May 1976 in pay grade E-1.

9.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 1 year, 10 months, and 6 days of active service with 
220 days of lost time due to being AWOL and in confinement.

10.  On 16 September 1976, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, at the time an undesirable discharge was normally considered appropriate.

12.  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.

13.  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.




DISCUSSION AND CONCLUSIONS:

1.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation.  He was mature enough to complete training.

2. The applicant's records show he was charged with being AWOL on several occasions which is an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10, Army Regulation
635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of a trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  Based on his record of indiscipline, he was appropriately discharged under the provisions of chapter 10, Army Regulation 635-200 with an undesirable discharge.

4.  There is also no evidence the applicant was tricked into requesting a discharge.  It appears he requested a discharge under the provision of chapter 10 rather than facing a court-martial conviction and having a felony conviction on his record.

5.  He had 220 days of lost time to due to being AWOL and in confinement.  Therefore, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

6.  Properly-issued discharges are not upgraded solely for the purpose of making applicants eligible for benefits from other agencies.  Additionally, the Army has never had a policy to allow an individual with a less than honorable discharge to return within a specific period of time.

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)                                         AR20110009390



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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