IN THE CASE OF:	  

		BOARD DATE:  10 May 2012

		DOCKET NUMBER:  AR20110022743 


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 an honorable discharge.

2.  The applicant states that he was married at the age of 17, had a child and was 18 years of age when he enlisted.  He goes on to state that he had a drinking problem; was too young; had too many problems; he has always loved his country and desires to have his discharge upgraded in order to receive funeral honors. 

3.  The applicant provides no additional documents with 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 was married with two dependents when he enlisted in the Regular Army at the age of 18 on 30 August 1968 for a period of 2 years.  He completed his basic training at Fort Bragg, North Carolina and was transferred to Fort Sill, Oklahoma on 4 November 1968 to undergo his advanced individual training as a cannon crewman.

3.  The applicant went absent without leave (AWOL) on 7 December 1968 and remained absent in desertion until he was apprehended by civil authorities and was returned to military control at Fort Meade, Maryland on 17 February 1969, where charges were preferred against him for the absence.

4.  On 11 March 1969 he was convicted by a special court-martial of being AWOL from 7 December 1968 to 17 February 1969.  He was sentenced to confinement at hard labor for 3 months and a forfeiture of pay.

5.  On 5 May 1969 he was transferred to Fort Eustis, Virginia for on the job training as a cargo handler.

6.  The applicant again went AWOL on 16 June 1969 and remained absent in desertion until he was returned to military control at Fort Meade on 9 October 1969 and charges were preferred against him.

7.  He was convicted by a special court-martial on 5 November 1969 of being AWOL from 16 June to 9 October 1969.  He was sentenced to confinement at hard labor for 4 months, a forfeiture of pay and reduction to the pay grade of E-1. 

8.  The applicant completed his confinement at Fort Riley, Kansas and was transferred to Fort Leonard Wood, Missouri to undergo training as a paving equipment operator.  However, he went AWOL on 14 January 1970 and remained absent in desertion until he was apprehended by civil authorities in Pomeroy, Ohio on 28 March 1970 and was returned to military control at Fort Meade where charges were preferred against him.

9.  On 17 April 1970,  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.  In his request 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 a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also declined the opportunity to submit a statement in his own behalf.

10.  On 27 April 1970, the appropriate authority approved his request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

11.  Accordingly, on 27 April 1970, he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with the issuance of an undesirable discharge.  He completed 1 year, 2 months and  22 days of total active service and had 156 days of lost time due to AWOL and confinement.

12.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  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.

14.  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.

15.  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 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 or mitigating circumstances before a trial by court-martial, he voluntarily requested a discharge for the good of the service in lieu of trial by court-martial

3.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the repeated nature of his misconduct and the absence of mitigating circumstances at the time.  His service simply did not rise to the level of a general discharge or an honorable discharge and the Board does not upgrade discharge solely for the purpose of qualifying individuals for benefits.

4.  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)                                         AR20110022743





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ABCMR Record of Proceedings (cont)                                         AR20110022743



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