IN THE CASE OF:	  

		BOARD DATE:	    23 February 2012

		DOCKET NUMBER:  AR20110015346 


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 was only 17 when he joined the Army
* he just took what the Army gave him so he could get out
* he made a bad decision and he did not realize the impact of his decision
* he cannot not qualify for any benefits

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* Undesirable Discharge Certificate

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 was born on 15 July 1955 and he enlisted in the Arkansas Army National Guard (ARARNG) at nearly 18 years of age on 12 June 1973.  He was assigned to Headquarters and Headquarters Battery, 142nd Field Artillery, Fort Smith, AR.

3.  On 22 August 1973, Office of the Adjutant General, ARARNG, published Special Orders Number 162 ordering him to active duty for basic combat training at Fort Dix, NJ (on 17 September 1973) and advanced individual training at Fort Jackson, SC (on 2 November 1973).

4.  On 2 July 1974, he was issued a warning letter of unsatisfactory drill attendance by his immediate commander.  The letter stated that since the beginning of the current year, he had been absent without leave (AWOL) from Active Duty for Training (ADT) since 26 March 1974, a total of 98 days. 

5.  Also on 2 July 1974, in certified letter, the applicant was notified his unit had requested that he be ordered to active duty for a period of 24 months since he had accumulated 5 or more unexcused absences from scheduled training assemblies during a 1-year period. 

6.  On 7 October 1974, he was ordered to active duty, effective 21 October 1974, for a period of 20 months and 1 day.  He was ordered to report to Fort Polk, LA.

7.  On 20 October 1974, he was discharged from the ARNG by reason of having been ordered to active duty for failure to satisfactorily participate in required unit training.

8.  On 21 October 1974, at age 19, he entered active duty and he was assigned to 5th Battalion, 3rd Brigade, Fort Polk, LA, effective 12 November 1974.

9.  On 22 November 1974, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 18 to 21 November 1974.

10.  On 3 December 1974, he again departed his unit in an AWOL status and on 11 December 1974, he was dropped from the rolls of the Army as a deserter.  He returned to military control at Fort Polk, LA, on 22 January 1975.

11.  On 24 January 1975, court-martial charges were preferred against him for one specification of being AWOL from 3 December 1974 to 22 January 1975.

12.  Also on 24 January 1975, 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 discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for the good of the service - in lieu of trial by court-martial.

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

14.  On 30 January 1975, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  On 12 February 1975, the applicant was accordingly discharged.

15.  The DD Form 214 he was issued shows he was discharged for the good of the service - in lieu of a court-martial with an under other than honorable conditions character of service and he was issued an Undesirable Discharge Certificate.  This form further confirms he completed a total of 4 months and
1 day of creditable active service during this period and he had 56 days of time lost.

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

17.  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, the 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.

18.   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. 

19.  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.  His records show he was charged with the commission of an offense punishable under the UCMJ 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.  He 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 his rights were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

2.  The applicant was nearly 18 years of age at the time of his enlistment in the ARNG and 19 years of age when he was ordered to active duty.  Nevertheless, there is no indication he was any less mature than other Soldiers of the same age who successfully completed their military service obligation or that his extensive history of AWOL was caused by his age.

3.  Based on his record of indiscipline that included NJP and an extensive period of AWOL, his 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 an upgrade of his 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)                                         AR20110015346



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ABCMR Record of Proceedings (cont)                                         AR20110015346



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