IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100011232 


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 an upgrade of his undesirable discharge (UD) to a general discharge (GD).

2.  The applicant states, in effect, his discharge should be upgraded.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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's records show he enlisted in the Regular Army for a period of 3 years on 27 December 1971.  He completed basic combat and advanced individual training and was awarded military occupational specialty 63H (Wheel Vehicle Repairman).  The highest rank/grade he attained during his military service was private (PV2)/E-2. 

3.  His records also show he served in Germany from on or about 21 July 1972 to 15 February 1973 and he was awarded or authorized the National Defense Service Medal and Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  His records reveal two instances of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* On 6 March 1972, for being absent from his appointed place of duty (fire guard) on 5 March 1972
* On 17 April 1972, for being absent without leave (AWOL) from 4 April to 15 April 1972

5.  On 23 May 1972, he departed his unit in an AWOL status.  On 24 June 1972, he was dropped from the Army rolls.  He was ultimately apprehended by Federal authorities and returned to military control on 28 November 1972.

6.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged, on 28 February 1973, under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial with a UD.  This form also shows he completed a total of
1 year, 1 month, and 13 days of creditable active service and he had 11 days of lost time.

7.  On 14 November 1983, the Army Discharge Review Board denied the applicant’s petition for an upgrade of his discharge.  

8.  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 a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or GD is authorized, a UD was normally considered appropriate at the time.



9.  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.

10.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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 UD should be upgraded is not supported by the available evidence.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged, on 28 February 1973, under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a court-martial with a UD.

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service.

4.  There is no evidence in the available records nor did the applicant provide any documentation to warrant an upgrade of his discharge.  Based on his overall record, his service does not meet the standards of acceptable conduct and performance for Army personnel.  Therefore, he is not entitled to a GD.






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)                                         AR20100011232



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ABCMR Record of Proceedings (cont)                                         AR20100011232



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