IN THE CASE OF:
BOARD DATE: 30 September 2010
DOCKET NUMBER: AR20100009674
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 upgrade of his undesirable discharge to an honorable discharge.
2. The applicant does not make any statements.
3. The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge) for the period ending 6 April 1972, his DD Form 214 (Report of Separation from Active Duty) for the period ending 11 October 1974, and Executive Order 12473 that designated and made effective the "Manual for Courts-Martial, United States, 1984."
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 applicants 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 applicants 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 1 March 1971 and he completed training as an automotive repair parts specialist. He reenlisted, in pay grade E-4, on 7 April 1972.
3. He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on two occasions. The first for being absent without leave (AWOL) from 31 March to 1 May 1973 and the second for again being AWOL from 12 August to 16 October 1973. He was subsequently reduced to the pay grade of E-3 on 7 November 1973.
4. On 1 February 1974, he was advanced to pay grade E-4. However, he was again AWOL from 9 April to 15 September 1974. The applicant's discharge packet is not in the available records. However, his DD Form 214 issued on
11 October 1974 shows he was discharged in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial, with issuance of an Undesirable Discharge Certificate. During this period he had 1 year, 9 months, and 23 days of active service with 256 days of time lost.
5. There is no available evidence that the applicant ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its
15-year statute of limitations.
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. 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. An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.
b. 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.
7. Army Regulation 15-185 (Army Board for Correction of Military Records) (ABCMR) paragraph 2-9 states, "The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence."
DISCUSSION AND CONCLUSIONS:
1. The applicant did not explain what significance he attached to the submitted executive order or to the 1984 Manual for Courts-Martial.
2. The applicant's extended AWOL periods clearly show that a more favorable discharge is not warranted.
3. The regulations governing the Boards operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.
4. In view of the foregoing there is no basis for granting the applicant's requested relief.
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) AR20100009674
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