IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100025139 


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 to a general discharge.  He also requests copies of:

* A hospital record, dated 8 September 1972
* Financial records , dated 1972
* Disciplinary actions, dated 7 September 1972
* A judgment from the Adjutant General, Fort Rucker, AL, dated July or August 1972

2.  The applicant states, in effect, the type of discharge he received is too harsh considering the nature of his offense.

3.  The applicant provides:

* A self-authored "Request Number 1-7933856620," dated 23 September 2010
* An undated, self-authored statement
* Health Record – Chronological Record of Medical Care
* DD Form 214 (Report of Separation from Active Duty), dated 30 April 1974
* DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 19 June 1972



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 6 October 1971.  He completed training as a personnel specialist. 

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 19 June 1972, for being absent without leave (AWOL) from 15 April to 10 June 1972.  His punishment was a forfeiture of pay and extra duty.  On 30 August 1972, the punishment was set aside and all rights, privileges, and property affected was restored.

4.  The applicant's records show he was on convalescent leave for 30 days and returned to his unit to sign in on 31 October 1972.  He went AWOL the same day and he remained absent until he surrendered to military authorities on 
15 January 1974.

5.  On 30 January 1974, the applicant was notified that charges were pending against him for being AWOL from 31 October 1972 to 15 January 1974.  He acknowledged receipt of the notification.  After consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 
635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He submitted an undated statement in support of his request contending:

* he could not take any more of the hassle he had been getting
* he could not get the training he requested so he ended up being a clerk
* while he was on leave his mother was hospitalized and his sister-in-law died
* he requested emergency leave; however, the papers were never sent to him


* he returned from leave and received an Article 15 for being AWOL
* it was discovered that he had not been AWOL and his punishment was set aside
* his car broke down while returning from a weekend pass and even after presenting evidence of car problems he was still given extra duty
* he injured himself while performing extra duty, which resulted in the removal of one of his testicles
* he was not being paid and could not pay for his car or his other expenses
* he attempted to straighten out his situation, but to no avail
* he left but he had no intention of staying away permanently
* he was not guilty of desertion
* it was not fair to court-martial him after the way he was treated by the Army

6.  On 13 March 1974, the appropriate authority approved the request for discharge.  On 30 April 1974, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  He was furnished an Undesirable Discharge Certificate.

7.  There is no evidence that the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge.

8.  The applicant's statement provides:

* the day before he was to leave for Fort Dix, NJ for his assignment in Germany his mother had a serious car wreck and she was admitted to the Intensive Care Unit
* he was on leave at the time of the accident and he called his unit to request 30 days of emergency leave which he was granted
* after his 30 days had passed he requested an additional 30 days which he was granted
* approximately 25 days later he tried to get paid so that he could get a plane ticket to Fort Dix, NJ
* he was told he was considered to be AWOL and he was placed in a holding cell, fined $65.00, and put on restriction for 14 days
* After he filed a claim, he was told he was never AWOL, he was paid all of the money he was owed, and advanced to pay grade E-4
* he arrived at work late one day due to car trouble and he was given extra duty which resulted in the loss of his right testicle
* at the end of 30 days of convalescent leave he called Fort Rucker and told officials that he was not returning to the Army because he needed more time to deal with his injury and loss
9.  Army Regulation 635-200 (Personnel Separations) 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 3-7a 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.

	c.  Paragraph 3-7b 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.  

10.  The Manual for Courts-Martial, United States publishes the rules of practice and procedures for courts of military review, pursuant to the Uniform Code of Military Justice.  The Table of Maximum Punishment shows the punishment for being AWOL for more than 30 days is a dishonorable discharge, confinement at hard labor not to exceed 1 year, and forfeiture of all pay and allowances.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted.

2.  However, the actions by the Army in this case were proper.  He went AWOL on 31 October 1972 and he remained absent until he surrendered to military authorities 15 January 1974.  It is clear that he did injure himself while he was in the Army; he was hospitalized, treated, and sent home on convalescent leave to recuperate from his injury.  

3.  He failed to return from convalescent leave and he remained absent for over 1 year.  He submitted a request for discharge for the good of the service in lieu of trial by court-martial.  The appropriate authority approved his request and he was discharged accordingly. 

4.  The applicant's contention that his punishment was too harsh is without merit. Had his request for an administrative discharge been denied, he could have been subjected to a much more severe court-martial conviction.

5.  He has not shown error or injustice in the type of discharge he received.  In view of the foregoing his request should be denied.

6.  The ABCMR is not the custodian of the applicant's military records.  Requests for records should be made to the National Personnel Records Center, 9700 Page Avenue, St. Louis, Missouri 63132-5100.

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)                                         AR20100025139



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ABCMR Record of Proceedings (cont)                                         AR20100025139



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