IN THE CASE OF:	  

		BOARD DATE:	    22 March 2011

		DOCKET NUMBER:  AR20100022353 


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 show he received a general discharge under honorable conditions.

2.  He states, in effect, his case went before a review board in Wichita, KS in 1976 and his discharge was upgraded.

3.  He provides a third party statement. 

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 personnel record shows he enlisted in the Regular Army on 
24 April 1972.  
3.  His DA Form 20 (Enlisted Qualification Record) shows in item 38 (Record of Assignments) that while attending Basic Combat Training (BCT) he was assigned to Company (Co) D, 5th Battalion (Bn), 2nd Brigade (Bde), Fort (Ft) Polk, LA.  His duty status is depicted, in pertinent part:

Effective Date 
Principal Duty
Organization and Station

8 May 1972
BCT
Co D, 5th Bn, 2nd Bde, Ft Polk

21 July 1972
Absent without leave (AWOL)
Co D, 5th Bn, 2nd Bde, Ft Polk

22 July 1972
BCT
Co D, 5th Bn, 2nd Bde, Ft Polk

23 July 1972
AWOL
Co D, 5th Bn, 2nd Bde, Ft Polk

29 July 1972
Dropped from the rolls

16 November 1972
Duty Soldier
Personnel Confinement Facility, Ft Polk

14 December 1972
Undesirable Discharge

4.  A Mental Status Examination was performed on 20 November 1972.  The attending medical officer stated the applicant was mentally responsible and able to distinguish right from wrong and to adhere to the right.  He had the mental capacity to understand and participate in board proceedings and he met the retention standards prescribed in Chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). 

5.  His record contains a DD Form 458 (Charge Sheet), dated 23 November 1972.  This form shows charges under the Uniform Code of Military Justice (UCMJ) were preferred against him for going AWOL from 21 July to 
16 November 1972.

6.  On 5 December 1972, he voluntarily submitted a request for discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10.  The applicant stated he wished to be discharged because he did not like the Army and could not see the reason for its existence.  He thought it would be in the best interest of the Army and himself if he were discharged.  

7.  Prior to completing his request, he consulted with his appointed attorney, who advised him of his rights.  He acknowledged:



   a.  the request was of his own free will and he had not been subjected to coercion whatsoever by any person;
   
   b.  he had been advised of the implications that were attached to his request and that by submitting his request, he acknowledged that he was guilty of the charge against him or of a lesser or included offense that allowed the imposition of a bad conduct or a dishonorable discharge;
   
   c.  that he did not desire further rehabilitation or to continue service in the military;
   
   d.  if his request were accepted, he could be discharged under conditions other than honorable and understood the effects of an under other than honorable discharge;
   
   e.  he understood that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits including many or all benefits administered by the Veterans Administration [now the Department of Veterans Affairs]; 
   
   f.  he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge;
   
   g.  that once his request for discharge was submitted, it could only be withdrawn with the consent of the commander who exercised court-martial authority; and
   
   h.  he could submit any statements he desired to accompany his request for discharge; however, he did not submit any. 
   
8.  His immediate commander endorsed his request for discharge and recommended he be issued an undesirable discharge in view of the circumstances surrounding his case. 

9.  On 11 December 1972, his request for discharge in lieu of trial by court martial was approved by the general court-martial convening authority.  He directed he be issued a DD Form 258A (Undesirable Discharge Certificate) and be reduced to the lowest enlisted grade prior to his discharge. 



10.  His DD Form 214 shows 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 on 14 December 1972.  He 
completed 3 months and 24 days of creditable active service, with 117 days of lost time due to AWOL. 

11.  He provided a personal statement, dated 23 August 2010, from Mr. H_______.  Mr. H____ attested to the fact that he and the applicant were in the Army together in the year 1972 and did not see each other again until 2009.  Mr. H____ was with the Army National Guard and the applicant was in the Regular Army.  Due to the type of training the applicant received during BCT, Mr. H______ knew he would be going to Vietnam.

12.  He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 17 December 1980.  After careful consideration of his military records, the ADRB determined he was properly discharged and, accordingly, his request was denied.  

13.  His record is void of any indication that a review board convened and made a decision to upgrade his discharge in 1976.

14.  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.

15.  Army Regulation 635-200, paragraph 3-7b, also 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.  He contends his discharge was reviewed in Wichita, KS in 1976 and a determination was made to issue him a general discharge.  He has not submitted sufficient evidence or a convincing argument to support his contentions.  

2.  He voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial after court-martial charges were preferred against him for going AWOL.  His chain of command supported his request.

3.  The evidence shows 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.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows he was aware of that prior to requesting discharge.  Therefore, the reason for discharge and the characterization of service were both proper and equitable.

5.  In view of the fact that he only completed 3 months and 24 days of active service, with 117 days of lost time due to AWOL, his service does not warrant an upgrade.  Therefore, there is no basis to grant 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)                                         AR20100022353





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ABCMR Record of Proceedings (cont)                                         AR20100022353



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