IN THE CASE OF:	  

		BOARD DATE:  6 March 2012

		DOCKET NUMBER:  AR20110016723 


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 his Undesirable Discharge (UD) be upgraded to an Honorable Discharge (HD).

2.  The applicant states he was immature and a victim of child abuse, especially mental abuse.  He admits going absent without leave (AWOL) was wrong, but he would gladly serve today if called upon.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 was born on 14 January 1955 and enlisted in the Regular Army for 3 years on 7 December 1973.  He successfully underwent Basic Combat Training at Fort Polk, LA and Advanced Individual Training at Fort Huachuca, AZ where he was awarded military occupational specialty (MOS) 17K (Ground Surveillance Radar Crewman).  He was assigned to Fort Campbell, KY for his first permanent duty assignment.

3.  The applicant arrived at Fort Campbell on or about 10 April 1974.  He went AWOL from 22 April to 5 May 1974.  On 9 May 1974, he again went AWOL.  On 13 May 1974, court-martial charges were sworn.  On 15 May 1974, he returned from his second AWOL period.

4.  On 23 May 1974, after consulting with legal counsel, the applicant requested separation for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.

5.  On 10 June 1974, the court-martial charges were modified to include the first period of AWOL.  Between 11 and 14 June 1974, the applicant's request for discharge was processed through his chain of command.  Each commander recommended approval with a UD.  On 18 June 1974, the approval authority approved the applicant's request and directed the issuance of a UD.

6.  The applicant was discharged with a UD on 16 July 1974.  He had 6 months and 20 days of creditable active service and 20 days of lost time due to AWOL.

7.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 17 February 1983, denied his request.

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.  A UD would normally be furnished an individual who was discharged for the good of the Service.

9.  Army Regulation 635-200 also provides the following guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states an HD 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 a General Discharge (GD) 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's contention he suffered child abuse cannot be verified.  His claim of immaturity is noted, but he was 18 years and 10 months when he enlisted and he successfully completed all of his training.  There is no indication he was any less mature than others of similar age who served without incident.

2.  The applicant received a UD for two periods of AWOL totaling 20 days of lost time.  His 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.  There is no indication that the request was made under coercion or duress.

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 and the punitive discharge and Federal conviction that he might have received.

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)                                         AR20110016723



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ABCMR Record of Proceedings (cont)                                         AR20110016723



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