BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20110002302 


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 an honorable discharge (HD).

2.  He makes no statement and provides no documentary 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 22 July 1974.

3.  His record includes two DA Forms 4187 (Personnel Action) showing his duty status was changed from ordinary leave to absent without leave (AWOL) on 5 April 1975 and from AWOL to dropped from the rolls on 7 May 1975.
4.  A DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) shows he was returned to military control on 21 May 1975 at Fort Sill, OK.

5.  The complete facts and circumstances of his discharge processing are not included in the available records.  However, his record does include two extracts from Special Orders Number 156, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill (USAFACFS), Fort Sill, OK, dated 5 June 1975.  

	a.  The first extract reassigned him to the USAFACFS Separation Transfer Point.  This extract shows the authority for the action was Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  

	b.  The second extract discharged him effective 10 June 1975 and shows he received a DD Form 258A (Undesirable Discharge Certificate).

6.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under other than honorable conditions on 10 June 1975 and issued a DD Form 258A.

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

8.  Army Regulation 635-200 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, the 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 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.

   c.  Paragraph 3-7b provides that a general discharge (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.  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 evidence of record does not support the applicant's request for an upgrade of his discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  In the absence of documentary evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  His record shows he was AWOL from 5 April to 20 May 1975, an offense that authorized the imposition of a bad conduct or dishonorable discharge.  Based on this record of indiscipline his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a GD or an HD.

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)                                         AR20110002302



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ABCMR Record of Proceedings (cont)                                         AR20110002302



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