IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100022633 


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, an upgrade of his undesirable discharge (UD).

2.  The applicant states:

a. he was a model Soldier until his wife died flying in an aircraft in 1972,
three weeks after the birth of his daughter;

b. he reenlisted in 1972 showing signs stress and possible post traumatic
stress disorder (PTSD) and could not do what was required of him due to the loss of his wife;

c. there were no safeguards in place for Soldiers experiencing grief and he
should have been provided counseling or mental health treatment.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 military record shows he initially enlisted in the Regular Army (RA) on 30 April 1971 and continuously served until he was honorably discharged for the purpose of reenlistment on 19 September 1972.

3.  On 20 September 1972, he reenlisted in the RA.  He held and served in military occupational specialty 31J (Teletype Repairman).

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was advanced to the rank/grade of specialist four (SP4)/E-4 on 21 November 1971 and this was the highest grade he held while serving on active duty.  Item 21 (Time Lost Under Section 972, Title 10, U.S. Code) shows he was reported absent without leave (AWOL) during the following three periods totaling 59 days:

* 1- 17 November 1974 (17 days)
* 30 January - 9 February 1975 (11 days)
* 11 February - 13 March 1975 (31 days)

5.  His military record shows he twice accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 26 July and on 27 September 1974, for two AWOL and two “failure to repair” offenses.

6.  On 3 April 1975, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ for being AWOL during three separate occasions as indicated on his DA Form 2-1 and immediately above in paragraph 5.

7.  On 14 April 1975, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

8.  In his request for discharge, the applicant acknowledged he understood 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.  He also indicated that he understood he could face substantial prejudice in civilian life if he were issued a UD and submitted a statement on his own behalf.

9.  In the applicant’s statement he:

	a.  summarized his military history

	b.  indicated he had many financial problems which resulted in:

	(1)  his inability to pay his loans;
	(2)  the repossession of his car leaving him without transportation;
	(3)  many fights with his wife causing a strain on their marriage; and

	c.  indicated it was best that he be discharged from military service in order to find a better job to pay his bills, improve his marriage, and take care of his drinking problem.

10.  On 24 April 1975, the applicant underwent a mental status evaluation that showed:

* his behavior and thought content were normal
* he was fully alert and oriented
* he had a level mood
* his thinking process was clear
* his memory was good
* he was able to distinguish right from wrong and adhere to the right
* he was mentally responsible
* he met retention requirements prescribed in Chapter 3, Army Regulaton 40-501
* he had the mental capacity to understand and participate in separation proceedings.

11.  On 5 May 1975, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the applicant's reduction to the lowest enlisted grade and issuance of a UD Certificate.  On 13 May 1975, the applicant was discharged accordingly.

12.  The applicant's DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10.  It also shows he completed 3 years, 
10 months, and 16 days of total active service with 59 days of time lost.

13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  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.  A UD Certificate would normally be furnished an individual who was discharged for the good of the Service.

15.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.

16.  Army Regulation 635-200, 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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL on three separate occasions totaling 59 days of time lost.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  The applicant’s offenses rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

3.  In view of the foregoing, the applicant’s request should be denied.

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)                                         AR20100022633





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ABCMR Record of Proceedings (cont)                                         AR20100022633



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