IN THE CASE OF:	  

		BOARD DATE:	    12 July 2011

		DOCKET NUMBER:  AR20110000128 


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.

2.  The applicant states he was assaulted while on active duty and he received a gunshot wound while on a weekend pass in Portland, OR.  He states he was hospitalized for 3 days and was again hospitalized upon his return to Fort Lewis, WA.  He further states he believes his discharge was related to his being shot and not receiving any military assistance to help seek justice; instead he was given inconsistent advice that led to his needing to go AWOL.

3.  The applicant provides no additional evidence in support of his application.

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 8 December 1971.  He completed initial entry training and he was awarded military occupational specialty 71B (clerk typist).  The highest rank/grade he attained was specialist four (SP4)/E-4.

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the period 7 February to 11 March 1974 and for failing to go at the time prescribed to his appointed place of duty on 27 and 28 April 1974.

4.  On 9 January 1975, he was charged with being AWOL during the period 17 May 1974 to 7 January 1975.

5.  On 15 January 1975, having consulted with legal counsel, he voluntarily requested a 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 acknowledged that he understood he could request a discharge for the good of the service because charges had been preferred against him under the UCMJ, which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he was making the request of his own free will and he was not subjected to coercion with respect to his request for discharge and that he had been advised of the implications attached to his request.  He further acknowledged that by submitting his request for discharge, he was admitting to being guilty of a charge against him or of a lesser included offense(s) therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge.

6.  He further acknowledged he understood if his discharge request was approved, he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.  He submitted a statement in his own behalf with his request.  In his statement he chronicles the numerous times he moved from one location to another, his parent's divorce, and the times he got into trouble.  He indicates he was shot by another person with a .22 caliber pistol while in Portland, OR.  He indicated he wanted out of the Army.

7.  On 4 February 1975, the separation authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation
635-200, chapter 10, with an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.

8.  On 10 February 1975, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued at that time shows he completed 2 years, 5 months, and 5 days of total active service with 267 days of time lost.

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

10.  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 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.  

11.  Army Regulation 635-200, paragraph 3-7a, provides 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.

12.  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.  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.  The applicant's record shows he received NJP for two offenses of failing to go at the time prescribed to his appointed place of duty and for being AWOL for 32 days.  He was AWOL for 235 additional days for which court-martial charges were preferred.

2.  He voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  In doing so, he admitted guilt to the charge or of a lesser included offense(s) which authorized the imposition of a bad conduct or dishonorable discharge.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  Therefore, he was properly and equitably discharged.  The record contains no indication of procedural or other errors that would have jeopardized his rights.

3.  The Army has policies and procedures to deal with hardships and assisting its Soldiers.  The applicant has not submitted any evidence to show he properly requested assistance related to his being shot and has not provided a reasonable explanation as to why he was AWOL twice for a total of 267 days.  However, even if he did, it would not form the basis to upgrade his discharge.

4.  In view of the foregoing, there is no basis for 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)                                         AR20110000128



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ABCMR Record of Proceedings (cont)                                         AR20110000128



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