IN THE CASE OF:	  

		BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110010387 


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 honorable.

2.  The applicant states he was advised at the time of his discharge and was given a letter stating that his discharge would be upgraded to honorable within    1 year and to date no upgrade has been made.   

3.  The applicant provides a page from a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) explaining the circumstances of his discharge and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 on 17 December 1969 for a period of 3 years.  He completed his basic training at Fort Bragg, North Carolina and his advanced individual training as a light weapons infantryman at Fort Polk, Louisiana.

3.  On 6 July 1970 he was transferred to Vietnam for assignment to Company D, 3d Battalion, 8th Infantry Regiment, 4th Infantry Division for duty as a rifleman.

4.  On 30 August 1970, he reenlisted for a period of 3 years and an in-country reassignment as a security guard.  He was reassigned to Company C, 87th Infantry Regiment on 17 October 1970.

5.  On 8 February 1971 charges were preferred against the applicant for being absent without leave (AWOL) from 13 November to 4 December 1970 and from 7 December 1970 to 19 January 1971, four specifications of writing bad checks, the wrongful possession of another Soldier’s identification card, the wrongful possession of another Soldier’s Ration Card, and two specifications of the wrongful possession of another Soldier’s In-Country Travel Authorization.

6.  On 24 February 1971, after consulting with defense 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.

7.  On 19 March 1971, the appropriate authority approved his request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

8.  Accordingly, on 24 March 1971, 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 2 months and 17 days of active service during his current enlistment and had 128 days of lost time.

9.  At the time of his discharge, he acknowledged with his signature that he had been briefed on the procedures for applying to the Army Discharge Review Board for a review of his discharge within 15 years after the effective date of discharge or dismissal.

10.  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 board’s 15-year statute of limitations.
 
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 3-7a, 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, states 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.  The applicant’s contention that he was informed his discharge would be upgraded within 1 year of his discharge has been noted and appears to lack merit.  Not only has the applicant failed to show through the evidence submitted 

with his application and the evidence of record that such was the case, there has never been an automatic upgrade of such discharges.  To the contrary, he 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. He also acknowledged with his signature that he had been briefed on the procedures for applying to the Army Discharge Review Board, a clear indication that an upgrade is not automatic.

2.  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.

3.  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.  It is also noted that he offered no mitigating circumstances at the time.

4.  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 his repeated misconduct, his undistinguished record of service, and the absence of mitigating circumstances at the time.  His service simply did not rise to the level of an honorable or 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)                                         AR20110010387





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ABCMR Record of Proceedings (cont)                                         AR20110010387



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