IN THE CASE OF:	  

		BOARD DATE:  19 April 2012

		DOCKET NUMBER:  AR20110021319 


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 a general discharge.

2.  The applicant states that his discharge was supposed to be upgraded to a general discharge after 6 months but never was.

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 enlisted in the Regular Army at the age of 22 in Cincinnati, Ohio on 31 July 1974 for a period of 3 years, training as an armor crewman, and assignment to the 2d Armored Cavalry in Europe.

3.  He completed his basic training at Fort Jackson, South Carolina and was transferred to Fort Knox, Kentucky to undergo his advanced individual training.

4.  On 4 November 1974 he went absent without leave (AWOL) and remained absent in desertion until he was returned to military control at Fort Knox on 2 June 1975.  Charges were preferred against him for the absence on 12 June 1975.

5.  On 17 June 1975 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 charges against him or of lesser-included offenses 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.  He also elected to submit a statement in his own behalf whereas he stated, in effect, that he hated anything to do with the Army and he would continue to go AWOL until he was discharged.

6.  The appropriate authority (a major general) approved his request for discharge on 23 June 1975 and directed his discharge under other than honorable conditions.

7.  On 3 July 1975, 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 4 months and 5 days of active service and had 210 days of lost time due to AWOL.  There is no evidence in his official records to show that he was ever informed that his discharge would be upgraded.

8.  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.

9.  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 lesser-included offenses 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.

10.  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 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.

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 charges against him.

3.  The applicant's request has been noted.  However, it is not sufficiently mitigating to warrant relief under the circumstances, especially given the length of his absence, and the circumstances surrounding his AWOL he presented at the time.  His service simply did not rise to the level of an honorable or a general discharge.

4.  The applicant entered into a contract with the government of the United States and he failed to fulfill that contract.  By his own admission at the time it was his choice not to complete the terms of his contract.  Additionally, there have never been any provisions for an automatic upgrade of such discharges.  Accordingly, there appears to be no basis to grant his request for 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)                                         AR20110021319





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ABCMR Record of Proceedings (cont)                                         AR20110021319



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