IN THE CASE OF:	  

		BOARD DATE:	  30 June 2011

		DOCKET NUMBER:  AR20100030411 


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 his undesirable discharge be upgraded to a general discharge.

2.  The applicant states:

* When he was at Fort Polk, LA he came down with hepatitis C and could not get the proper medical care
* He went absent without leave (AWOL) so he could get home and get proper medical care 

3.  The applicant provides a DD Form 214 (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.  He enlisted in the Regular Army on 11 September 1972 for a period of 4 years.  He completed training and was awarded military occupational specialty 11B (light weapons infantryman).  He attended advanced individual training (AIT) at Fort Polk, LA.

3.  On 25 June 1973, he was convicted by a summary court-martial of two specifications of AWOL (from 27 January 1973 to 5 April 1973 and 6 April 1973 to 10 June 1973).  He was sentenced to be reduced to E-1 and to forfeit $150.00 pay per month for 1 month.  On 25 June 1973, the convening authority approved the sentence.  

4.  He went AWOL on 5 July 1973 and returned to military control on 17 July 1973.  He went AWOL again on 29 August 1973 and returned to military control on 16 January 1974.  He went AWOL a third time on 25 January 1974 and returned to military control on 16 February 1974.  

5.  On 22 February 1974, he underwent a separation physical examination and was found qualified for separation.  In item 11 (Have you ever had or have you now) of his Standard Form 93, he marked "No" to stomach, liver, or intestinal trouble.

6.  On 25 February 1974, charges were preferred against the applicant for the AWOL periods.

7.  On 25 February 1974,  after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated in his request he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated he wanted out of the Army because he was nervous and could not adjust.

8.  On 4 March 1974, the separation authority approved the applicant's request for discharge and directed the issuance of an undesirable discharge.



9.  He was separated with an undesirable discharge on 8 March 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed a total of 1 year and 25 days creditable active service with 155 days of lost time.

10.  There is no evidence which shows he was diagnosed with hepatitis C prior to his discharge.

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

12.  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, the 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 to an individual who was discharged for the good of the service.

13.  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.  Although he contends he came down with hepatitis C while at Fort Polk, there is no evidence of record and he provided no evidence to support this contention.  He was found qualified for separation on 22 February 1984.

2.   His record of service included one summary court-martial conviction and   155 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, his record of service is insufficiently meritorious to warrant a general discharge.

3.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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)                                         AR20100030411





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100030411



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1