IN THE CASE OF:	  

		BOARD DATE:	    1 September 2011

		DOCKET NUMBER:  AR20110002633 


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 correction of his DD Form 214 (Report of Separation from Active Duty), dated 11 November 1976, to show he received a General Discharge (GD).

2.  He states, in effect, when he was discharged from the Army on 11 November 1976 he received a GD.  He contends he recently filed for benefits and he was told he was not discharged under honorable conditions and therefore was not eligible for benefits.  He contends his DD Form 214, item 9e (Characterization of Service), contains an error.  

3.  He did not provide any additional documentation. 

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.  His military personnel record shows he served in the Regular Army (RA) honorably from 29 December 1972 to 3 November 1975 until he was separated for immediate reenlistment.  He served in military occupational specialty (MOS) 76Q (Special Purpose Equipment Repair Parts Specialist).  He was issued a 
DD Form 214 for this period of service that shows he completed 2 years,
10 months, and 4 days of net active service this period.

3.  He reenlisted in the Regular Army on 4 November 1975 and served until he was issued an undesirable discharge on 11 November 1976.  He served in MOS 11C (Indirect Fire Crewman).  The complete facts and circumstances of the applicant's separation action are not available for review.

4.  The applicant's DD Form 214 for the period ending 11 November 1976 shows he received an administrative discharge due to conduct triable by a court-martial with an Undesirable Discharge Certificate.  He had completed a total of 9 months and 6 days of net active service this period and he had a total of 93 days of lost time due to being AWOL.  

5.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in:

   a.  Item 5 (Oversea Service) – he served in the Federal Republic of Germany from 15 December 1974 through 16 December 1975;

	b.  Item 9 (Awards, Decorations and Campaigns) – no valorous awards or special recognition; 

	c.  Item 18 (Appointments and Reductions) - the highest rank he attained while in the Army was specialist four/E-4; 

	d.  Item 21 (Time Lost) – a total of 93 days of lost time due to being absent without leave (AWOL); and 

	e.  Item 35 (Record of Assignments) – he was dropped from the rolls as an Army deserter on 3 July 1976 and was issued an Undesirable Discharge Certificate on 11 November 1976. 

6.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time an undesirable discharge was normally considered appropriate. 
7.  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.  

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was issued GD on 11 November 1976 and that the characterization of service that is shown the DD Form 214 ending on 
11 November 1976 is incorrect.  His contentions were carefully considered; however, they lack merit.

2.  His record does contain a DD Form 214 for the period ending 3 November 1975, which clearly shows he received an honorable discharge for that period of service which was a total of 2 years, 10 months, and 4 days.
 
3.  His record also shows that after he reenlisted he went AWOL on several occasions and on the last occasion he was dropped from the rolls of the Army prior to returning to military control.

4.  His DD Form 214 for the period ending 11 November 1976 shows he was charged with the commission of an offense which was triable by court-martial.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 required an admission of guilt to the offenses charged and are voluntary requests for discharge in lieu of trial by court-martial.  Therefore, in the absence of evidence to the contrary it is presumed the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  

5.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge reflects his overall record of military service.

6.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to GD for the period ending 11 November 1976. 




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)                                         AR20110002633



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ABCMR Record of Proceedings (cont)                                         AR20110002633



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