IN THE CASE OF:	  

		BOARD DATE:	    26 July 2011

		DOCKET NUMBER:  AR20110001452 


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 (UD) be upgraded to a general discharge (GD).

2.  The applicant states he believes an error occurred when he was told he could get out of the Army under the provisions of chapter 10 with a GD.  He claims he had no intention of getting out of the Army because he wanted to make it a career.  He states he needs his discharge upgraded to receive health benefits based on his current health issues.  

3.  The applicant provides medical documents relating to his current medical conditions 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’s record shows he initially enlisted in the Regular Army on 
2 March 1971 and he was awarded military occupational specialty (MOS) 13A (Field Artillery Basic).  On 14 December 1971, he was honorably discharged for immediate reenlistment.  He had completed 9 months and 13 days of active service.  On 15 December 1971, he reenlisted for 6 years.  

3.  The applicant’s record shows he earned the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  His record documents no acts of valor or significant achievement.  

4.  The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 22 May 1972, for being absent without leave (AWOL) from 5 through 19 May 1972.  It also shows he accrued 111 days of time lost during three separate periods of AWOL between 5 May and 10 September 1972.  

5.  A complete separation packet containing all the facts and circumstances surrounding the applicant’s separation processing are not in the available record.  The record does show the facts and circumstances surrounding the applicant’s discharge were forwarded to the Department of Veterans Affairs (VA) from the National Personnel Records Center (NPRC) at the applicant’s request on 
3 January 1973.  

6.  The record includes a Standard Form (SF) 88 (Report of Medical Examination), dated 19 September 1972, that documents the applicant’s separation physical examination.  It shows no disabling conditions and the examining physician confirmed he had no physical or mental defects warranting medical disposition. The applicant was found to be fully qualified for retention/separation. 

7.  The record also contains a properly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that identifies the authority and reason for his discharge.  It confirms he was discharged on 20 October 1972, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for the good of the service in lieu of trial by court-martial, with an Undesirable Discharge Certificate.  It further shows, at the time of discharge, he held the rank/grade of private/E-1, and he had completed a total of 1 year and 4 months of creditable active military service.  He had also accrued 111 days of lost time due to being AWOL.



8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable discharge or GD is authorized, a discharge under other than honorable conditions is normally considered appropriate.  However, at the time the applicant was discharged a UD was considered appropriate 

9.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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 applicant’s contentions that his discharge should be upgraded because he believed he was being issued a GD and that he needs benefits due to medical issues has been carefully considered.  However, there is insufficient evidence to support his claim.

2.  The available evidence does not include a separation packet containing the specific facts and circumstances surrounding the applicant’s final discharge processing.  It is noted the facts and circumstances surrounding the applicant’s discharge processing were forwarded to the VA by the NPRC at the applicant’s request in January 1973; however, he failed to provide these documents with his application.  The record does include a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, government regularity in the discharge process is presumed. 

3.  The applicant’s DD Form 214 confirms 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 with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with defense counsel and to voluntarily request a discharge from the Army in lieu of trial by court-martial.  In the absence of information to the contrary it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.


4.  The applicant’s record documents no acts of valor or significant achievement; however, it does reveal a disciplinary history that includes his acceptance of NJP and his accrual of 111 days of lost time due to three separate periods of AWOL.  

5.  The UD he received was normal and appropriate under the regulatory guidance in effect at the time and his overall record of undistinguished service was not sufficiently meritorious to support the separation authority issuing a GD at the time of discharge nor does it support an upgrade now.

6.  The applicant was medically evaluated prior to discharge as part of the separation process and he was determined to be fully qualified for retention/separation.  It was determined that he had no medical problems. 

7.  In view of the foregoing, there is insufficient evidence to grant relief in this 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)                                         AR20110001452



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ABCMR Record of Proceedings (cont)                                         AR20110001452



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