BOARD DATE:	  8 November 2011

		DOCKET NUMBER:  AR20110010067 


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 to a general discharge.

2.  The applicant states he asked to be discharged because of troubles he was having at home.  He states he was needed at home because his father was sexually abusing his sister and his sister needed his help.

3.  The applicant provides no additional evidence.

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 St. Louis, Missouri, on 31 March 1972 for a period of 3 years and assignment to Fort Carson, Colorado.  He completed basic training at Fort Leonard Wood, Missouri, and was transferred to Fort Carson for on-the-job training as a light weapons infantryman on 30 June 1972.

3.  On 8 November 1972, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 2 to 8 November 1972.

4.  On 13 March 1973, he was convicted by a special court-martial of being AWOL from 1 December 1972 to 6 January 1973.

5.  On 5 December 1973, he was convicted by a summary court-martial of being AWOL from 12 November to 1 December 1973.

6.  On 16 May 1974, NJP imposed against him for being AWOL from 16 April to 2 May 1974.

7.  The applicant again was AWOL from 7 to 9 July 1974.  On 23 August 1974, he was AWOL and remained absent in desertion until he was returned to military control on 5 November 1974.  On 11 November 1974, charges were preferred against him for these absences.

8.  After consulting with defense 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.  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 charge against him or of a lesser-included offense which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.

9.  He further elected to submit a statement or explanation in his own behalf in which he stated he wanted to be discharged from the Army because he could not take any more.  His parents were sick and his mother and father could not work.  He stated he could not take any more of Army life and that he just joined to get away from everything that was bugging him.  He further stated he just could not help it – he tried and he could not – and he did not want any more of Army life.

10.  The appropriate authority approved his request for discharge on 19 November 1974 and directed issuance of an Undesirable Discharge Certificate.

11.  On 21 November 1974, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions character of service.  He completed 2 years and 27 days of active service and had 205 days of lost time due to AWOL and confinement.

12.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

13.  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.

14.  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 discharge for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, 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 charge against him.

3.  The applicant's contentions and supporting documents have been noted.  However, they are not sufficiently mitigating to warrant relief under the circumstances, especially given the nature of the mitigating circumstances provided by the applicant at the time, his repeated absences, and his undistinguished record of service.  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 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)                                         AR20110010067



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ABCMR Record of Proceedings (cont)                                         AR20110010067



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