IN THE CASE OF: BOARD DATE: 12 August 2010 DOCKET NUMBER: AR20100007707 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, in effect, that his undesirable discharge be upgraded to an honorable discharge. 2. The applicant states, in effect, he was in the process of being discharged from the Army due to medical reasons and he waited for his discharge to be approved for approximately 4 months before he decided to leave. He claims he did not do anything wrong other than leave before he actually received his official discharge papers. Upon returning to military control he spent approximately 3 weeks in the stockade at Fort Ord, California before he was issued an undesirable discharge. He does not believe his circumstances fit this type of discharge. 3. He states he enlisted in the U.S. Army in 1974 for 4 years, an enlistment bonus, and assignment to Korea. After he completed basic combat training (BCT) at Fort Ord, he proceeded to Fort Polk, Louisiana for advanced individual training (AIT). He sprained his ankle and he had to wear a cast for 2 weeks which resulted in the cancellation of his orders for Korea. He requested a general discharge due to the cancellation of his assignment and he waited in his barracks pending the approval of his discharge. He went on Christmas leave and brought his wife back with him. After waiting for an additional 2 weeks he became frustrated and he left. After being absent about a year he contacted the Army and was ordered to be detained in the stockade at Fort Ord. He does not believe he should have an undesirable discharge or be penalized for leaving early because he was already pending a discharge. He had no intention of dishonoring his country or backing away from his obligations. 4. The applicant provides three character reference letters and 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 on 21 September 1973 . A copy of his DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows he enlisted for 4 years, a cash bonus and an assignment to the Eighth U.S. Army Korea. He completed BCT and AIT and was awarded military occupational specialty 11B (Light Weapons Infantryman). 3. A DD Form 458 (Charge Sheet), dated 24 June 1974, shows the applicant was charged with one specification of violation of Article 86 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from on or about 2 April until 18 June 1974. 4. In June 1974, the applicant's immediate commander recommended that he be tried by court-martial. On 24 June 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a bad conduct discharge, and of the procedures and rights that were available to him. 5. He elected to make a statement on his own behalf. In effect, he stated he joined the Army because he did not have any money. When he initially joined he was single but later he got married and he had three kids and not enough money to take care of them. He was unable to adapt to military life, and he had personal problems. His pay had been inaccurate and the fact that the Army thought he was unsuitable was unfair. He stated he would go into an AWOL status until he received his discharge. He acknowledged that he would not receive any Veterans Administration (VA) benefits such as education, training and loans. 6. The applicant underwent a separation physical on 26 June 1974 and was found fit for separation. On 28 June 1974, the applicant voluntarily requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations). 7. On 28 August 1974, the separation authority approved the applicant's request for discharge and directed that he be issued an Undesirable Discharge Certificate. 8. The applicant's DD Form 214 shows he was discharged on 6 September 1974 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations) with an undesirable discharge. He had completed 8 months and 4 days of active service and had 101 days of lost time. 9. The applicant provided 3 character reference letters which describe him as trustworthy, honorable, and a true gentleman. These letters also note his sense of community and his willingness to always lend a helping hand. 10. There is no evidence in the applicant's record to show that he applied to the Army Discharge Review Board for consideration of his case within that board's 15-year statute of limitations. 11. 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 under other than honorable conditions discharge certificate would normally be furnished to an individual who was discharged for the good of the Service. However, an undesirable discharge was considered appropriate at the time the applicant was discharged. 12. 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. 13. 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 contention that his undesirable discharge should be upgraded to an honorable discharge was not supported by the evidence. 2. The applicant's sense of community and trustworthiness were considered; however, based on his military record which includes a prolonged period of AWOL, military confinement, and punishment under the UCMJ, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel. 3. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests in lieu of trial by court-martial. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. There is no evidence of an error or injustice on the part of the Army. Therefore, the applicant is not entitled to an honorable or general characterization of service. 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) AR20100007707 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont)