IN THE CASE OF:	

		BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20110013085 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states it has been 37 years and his only crime was that he fell in love and got married while on leave.  He states at the time he was just 17 years old and wanted to be with his wife.  He states he was young and made a mistake but he wishes to have something to show his grandchildren before he dies.

3.  The applicant provides no documentary evidence in support of his application.

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 (RA) on 22 October 1969.  He successfully completed basic combat training at Fort Bragg, NC and advanced individual training (AIT) at Fort Jackson, SC.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 94B (Cook).  His record documents no acts of valor or significant achievement.

3.  The applicant’s disciplinary history includes his accrual of 1,532 days of time lost during seven separate periods of being absent without leave (AWOL) between 7 February 1970 and 12 June 1974.  It also includes a special court-martial (SPCM) conviction for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from 7 February through 19 February 1970 and 28 February through 19 April 1970.

4.  On 28 June 1974, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for six specifications of violating Article 86 of the UCMJ by being AWOL during the following periods:

* 30 April - 22 May 1970
* 22 May - 10 June 1070
* 20 June - 17 October 1970
* 17 October 1970 - 22 August 1972
* 28 August 1972 - 20 February 1973
* 10 March 1973 - 12 June 1974

5.  On 26 June 1974, the applicant consulted with counsel and after being advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment, he voluntarily requested discharge 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.

6.  On 22 August 1974, the separation authority approved the applicant’s request for discharge and directed he receive an Undesirable Discharge Certificate.  On 29 August 1974, the applicant was discharged accordingly.

7.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations. 

8.  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 or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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.

9.  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.  The applicant's request to upgrade his discharge because the only mistake he made was being young and in love has been carefully considered.  However, the record shows the applicant successfully completed training and he was sufficiently mature to satisfactorily serve if he had chosen to do so.

2.  The evidence of record further confirms the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge.  His record reveals a disciplinary record that includes his accrual of 1,532 days of time lost during seven separate periods of AWOL and an SPCM conviction.  It further confirms he voluntarily requested discharge to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge.

3.  Based on the applicant's undistinguished short period of service and his extensive misconduct, the undesirable discharge he received was normal and appropriate under the regulatory guidance in effect at the time.  Therefore, there is an insufficient evidentiary basis for granting his requested relief.

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)                                         AR20110013085



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110013085



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1