IN THE CASE OF:	  

		BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100021684 


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 (UD) to a general.

2.  The applicant states his discharge was caused by his not being paid for three months.  He further states he suffered from several medical conditions.

3.  The applicant provides various documents from his military record.

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 24 January 1972.  He was trained in and awarded military occupational specialty (MOS) 11B (light weapons infantryman).

3.  The record confirms the applicant was advanced to the rank/grade of private first class (PFC)/E-3 on 21 July 1972, and that this is the highest rank he attained while serving on active duty.  It further shows he was reduced to private (PV2)/
E-2 for cause on 2 August 1972, and to private (PV1)/E-1 on 17 October 1972.

4.  The applicant’s record documents no acts of valor or significant achievement.  It does reveal a disciplinary history that includes his accruing 51 days of time lost due to two separate periods of being absent without leave (AWOL) between
1 August 1972 and 31 October 1972.  There are no pay documents contained in his Official Military Personnel File.

5.  On 12 September 1972, the applicant underwent a separation physical examination.  The Standard Form (SF) 88 (Report of Medical Examination) documenting this examination shows he received all normal findings in the clinical evaluation portion of the examination, it lists no defects or diagnosed conditions, and there are no disqualifying medical conditions documented.  The examining physician assigned a physical profile of 111111 and found the applicant qualified for retention/separation.  

6.  On 5 October 1972, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 1 August 1972 through on or about 11 September 1972.

7.  On 10 October 1972, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial and the maximum punishment authorized under the UCMJ; of the possible effects of an under other than honorable conditions discharge; and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service - in lieu of trial by court-marital  

8.  In his request for discharge, the applicant acknowledged that as a result of his request, he could receive an Undesirable Discharge Certificate; that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA); and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant included a statement with his request that indicated if his request for discharge were not approved, he would go AWOL again.  

9.  On 17 October 1972, the separation authority approved the applicant’s request and directed he receive an Undesirable Discharge Certificate.  On
31 October 1972, he was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he completed a 7 months and 17 days of total active service with 51 days of time lost due to AWOL.

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge 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, 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 Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

12.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his discharge should be upgraded because he was not paid for three months and because he suffered from several medical conditions have been carefully considered.  There are no pay documents in his record and he did not provide any documents indicating that he was unjustly denied pay during the period.  Further, an SF 88 documenting his separation physical examination shows he was medically qualified for retention/separation and no disqualifying medical conditions that would have warranted his separation processing through medical channels were noted.  Therefore, there is insufficient evidence to support his claims.  

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge 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.

3.  The undesirable discharge received by the applicant was normal and appropriate under the regulatory guidance.  His record documents no acts of valor and did not support the issuance of a general discharge by the separation authority at the time of his discharge, nor does it support an upgrade to a general discharge at this time.  As a result, his overall record of service is not sufficiently meritorious to support granting the 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)                                         AR20100021684



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ABCMR Record of Proceedings (cont)                                         AR20100021684



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