BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110009596 


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 (UD) to an Honorable Discharge.

2.  The applicant states:

* he is ashamed of what he did to cause his discharge
* he was young when he enlisted and got in with the wrong crowd
* he started using drugs in basic combat training (BCT) and went absent without leave (AWOL) after BCT

3.  The applicant continues:

* he straightened out his life at age 21, married a Christian girl, and accepted Jesus Christ as his personal savior
* he raised 3 children and now he has 14 grandchildren
* he retired from his job and he is a lay pastor at his church
* he supports our military

4.  The applicant provides:

* a personal letter, dated 18 April 2010
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* 
four character reference letters dated:

* 18 April 2010, from a Kentucky State Representative
* 21 April 2010, from the Breckinridge Kentucky County Sheriff
* 18 April 2010, from a therapist at Breckinridge Memorial Hospital
* 23 April 2010, from a retired U.S. Army Sergeant First Class

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.  Born on 17 May 1954, the applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) for 6 years on 10 February 1972.  On 11 June 1972, he was discharged from the DEP and enlisted in the Regular Army (RA) for 3 years on 12 June 1972.  He was 18 years old upon entering the RA.

3.  The applicant was assigned to Fort Knox, KY for initial entry training.  He completed BCT with Company B, 19th Battalion, 5th Brigade and was transferred to Headquarters and Headquarters Company, 194th Brigade on 17 August 1972 for advanced individual training (AIT).

4.  The applicant's records show he was AWOL a total of 284 days during the following periods:

* 21-22 August 1972
* 24 August 1972 through 7 February 1973
* 12 February 1973 through 5 June 1973

5.  The applicant was placed in military confinement on 6 June 1973.  On 14 June 1973, court-martial charges were preferred against him for the above periods of AWOL.

6.  On 15 June 1973, the applicant having consulted with a duly-certified legal counsel, voluntarily requested discharge for the good of the service 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 acknowledged that, if his request were accepted, he may be furnished an Undesirable Discharge Certificate.  He stated he understood that, as a result of such a discharge, he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he might be deprived of his rights as a veteran under both Federal and State law.  He submitted a statement in his own behalf in which he stated:

I enlisted into the Army because I had nothing to do at that time.  I enjoyed it at the time, but after my dad had a kidney attack and couldn't work, I wanted to be with him all the time because I'm the only son in the family.  I don't think I could ever adjust to the Army again because I think a lot of my father and I want to get me a civilian job so my mother can quit work and I'll make the living for the family, and so I can be home every night in case they want to go some place, I'm the only one that can drive.  If my discharge is not accepted, I guess I will go AWOL again and just cause things worse on myself.  I don't have anything against the Army.  I enjoyed it at the time my dad had his bad spell, but after that all I done was worried about him.

7.  On 28 June 1973, the approving authority approved the applicant's request and directed the issuance of an Undesirable Discharge Certificate.

8.  On 28 June 1973, the applicant was reduced to the lowest enlisted grade.  On 9 July 1973, he was discharged under other than honorable conditions with a UD.

9.  There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade within that board's 15-year statute of limitations. 

10.  The character reference letters submitted by the applicant portray him as:

* a loving husband, father, and grandfather
* a spiritual person, active in his church as a lay pastor
* a man of high moral standards
* a person involved in his community
* a proud supporter of our Armed Forces who, every Sunday during church prayer, reads the names of the community's active duty personnel serving abroad in the war on terror

11.  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(s) charged, 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 an individual who was discharged for the good of the Service.

12.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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 HD. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that he be given an Honorable Discharge.

2.  The applicant was AWOL 284 days, thus he was charged with an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, 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 trial by court-martial.  All requirements of law and regulation were met, and all rights were fully protected throughout the separation process.  Further, the applicant’s discharge characterization accurately reflects his overall record of service.

3.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial, the Federal felony conviction, and the punitive discharge that he could have received.

4.  The applicant's age at enlistment was considered; however, at 18 years old, he was not significantly younger than other enlistees.  Although his post-service conduct has shown him to be a good citizen, husband, and father, this alone is not sufficient to warrant a discharge upgrade.

5.  Based on the record, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a discharge upgrade.

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)                                         AR20110009596



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110009596



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1