IN THE CASE OF:	  

		BOARD DATE:	      6 January 2011

		DOCKET NUMBER:  AR20100017108 


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, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to upgrade his Under Other Than Honorable Conditions Discharge to Honorable. 

2.  He states his service in the Army was honorable up until the time his mother fell ill.  With his commander’s permission he went home to visit his mother.  Upon his return to duty, he was deemed absent without leave (AWOL) without cause.  He contends he became ill due to the accusation of his AWOL and he currently still suffers as a result. 

3.  He did not provide any additional documentation in support of his request.

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.  His military records show he enlisted in the Regular Army on 8 June 1971 for a period of 3 years.  His DA Form 20 (Enlisted Qualification Record) indicates in item 38 (Record of Assignments) he was assigned to Company A, 4th Battalion, 2nd Brigade, Fort Ord, CA for basic combat training on 12 July 1971.  On 
22 October 1971, he was assigned to Company A, 1st Battalion, 4th Brigade for advanced individual training (AIT).  His records are void of any evidence he completed AIT or was awarded a military occupational specialty. 

3.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date Expiration of Term of Service (ETS)) of his 
DA Form 20 shows he was in an AWOL status on seven different occasions, dropped from the rolls twice; and confined by both military and civilian authorities between 2 August 1971 and 5 June 1972.  The total number of days lost was 205.

4.  A DD Form 458 (Charge Sheet) dated 11 May 1972 shows he was charged with one specification of violating Article 86 of the Uniform Code of Military Justice (UCMJ) for absenting himself without leave on 25 November 1971 and remaining in an AWOL status until 3 May 1972.   

5.  On 17 May 1972, he voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10, in lieu of trial by court-martial.  In his request he stated he understood he could request discharge in lieu of trial by court-martial because charges had been filed against him under the UCMJ, which could authorize the imposition of a bad conduct or dishonorable discharge.

6.  In his request, he stated he was making the request of his own free will and had not been subjected to coercion whatsoever by any person and he had been advised of the implications that were attached to his request.  By submitting his request, he acknowledged guilt of the charge against him or of a lesser or included offense that allowed the imposition of a bad conduct or a dishonorable discharge.  Moreover, he stated that he did not desire further rehabilitation or to continue service in the military.

7.  Prior to completing his request for discharge, he consulted with his appointed attorney.  His counsel fully advised him of the nature of his rights under the UCMJ, the elements of the offense with which he was charged; any lesser included offenses thereto; the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appear to be available at the time, and the maximum permissible punishment if found guilty.  

8.  He was advised he could submit a statement in his own behalf, which would accompany his request for discharge.  In his statement he discloses his inability to adjust to the Army lifestyle and his hate for the Army.  He contends that both he and the Army would benefit if he was discharged.  He stated he would not go back to duty and would go AWOL the first chance he was given if his request was not approved.  

9.  The Commanding General approved his request for discharge in lieu of trial by court-martial and directed he receive a DD Form 258A (Undesirable Discharge Certificate).   

10.  Accordingly, he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, with an "Under Other than Honorable Conditions Discharge," in the rank and pay grade of Private, E-1, on 19 June 1972.  He completed a total of 5 months and 16 days a creditable active service with 205 days of lost time. 

11.  His records indicate he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.   On 24 January 1978, the ADRB determined he was properly and equitably discharged and his request for upgrade of his discharge under the Department of Defense (DOD) Special Discharge Review Program (SDRP) was denied.  He was also informed that the denial did not preclude him from applying to the Veterans Administration (VA) for a determination of eligibility of VA benefits.

12.  The ADRB reviewed his discharge a second time under Public Law 95-126 and determined he was properly discharged and advised him that his request for change in the type of his discharge was denied.  

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit, at any time after the charges have been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

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, states 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.  

16.  On 4 April 1977, the DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 
28 March 1973.  This program, known as the DOD SDRP, required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

17.  In October 1978, Public Law 95-126 was enacted.  This legislation required the service Departments to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

DISCUSSION AND CONCLUSIONS:

1.  His request to upgrade his Under Other Than Honorable Conditions Discharge to an Honorable Discharge was carefully considered; however, it is not supported by the evidence of record. 

2.  He has not submitted sufficient evidence or a convincing argument to support his request.  The evidence shows he voluntarily submitted a request for discharge for the good of the service - in lieu of trial by court-martial.  With his request he submitted a statement which discloses his distaste for the Army and his intent to go AWOL again if his request was not approved.   

3.  His chain of command supported his request, and accordingly, he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, he was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offenses under the UCMJ.  

4.  The evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Therefore, the reason for discharge and the characterization of service were both proper and equitable.

5.  The ADRB's initial review of his discharge was under the provisions of the DOD SDRP.  The ADRB determined he was properly and equitably discharged and denied his request. 

6.  The ADRB's second review of his discharge was directed under Public Law 95-126.  The ADRB again voted unanimously to deny his request for upgrade of his discharge.

7.  There is no evidence and he has not provided sufficient evidence to show the ADRB's second decision was improper or not consistent with all applicable laws and regulations.

8.  After a review of the applicant’s record of service, it is evident that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20100017108



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)