BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20110002985 


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 states he believes he should have been allowed to complete his tour of duty or at least been given the option to do so.

3.  He provides documentation through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests consideration of the applicant's request for an upgrade of his discharge.

2.  Counsel states, in effect, the applicant's request should be considered as soon as possible.

3.  Counsel provides:

* the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Department of Veterans Affairs (VA) Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative)
* VA Form 21-4138 (Statement in Support of Claim)
* a Self-Help Guide to Discharge Upgrades
* DD Form 458 (Charge Sheet)
* four pages from the applicant's service medical records
* DA Form 20 (Enlisted Qualification Record)
* the applicant's request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) and associated documents

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 7 January 1971.

3.  On 20 July 1971, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failure to repair on 9 and 16 July 1971.  

4.  A DD Form 458 shows he was charged with being absent without leave (AWOL) from 24 to 25 August 1971 and from 1 September 1971 to 1 May 1973 a total of 609 days.

5.  On 16 May 1973, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  Prior to submitting his request, he consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial and the maximum possible punishment authorized under the UCMJ.

6.  In his voluntary request for discharge, he acknowledged he understood if his request was accepted he could be discharged under other than honorable conditions.  He further acknowledged he understood if he received an under other than honorable conditions discharge.  He could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.

7.  In a statement he provided with his voluntary request for discharge he indicated his attitude towards the Army changed when his commanding officer denied him permission to get married.  He went AWOL in September 1971, got married in October 1971, and found employment.  He felt he was needed at home more than the Army needed him.  He further stated, in effect, if his request for discharge was denied he would go AWOL again.  

8.  On 23 May 1973, the separation authority approved his request and directed that he be furnished an Undesirable Discharge Certificate.  On 5 June 1973, he was discharged accordingly.  His DD Form 214 shows he completed 8 months and 28 days of total active service with 495 days of time lost prior to his normal expiration term of service (ETS) date and 114 days of lost time subsequent to his normal ETS date.

9.  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.

10.  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(s) charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and of the possibility of prejudice in civilian life as a result of such a discharge.  An undesirable discharge 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of his discharge.

2.  He states he believes he should have been allowed to complete his tour of duty or at least been given the option to do so; however, the record shows he had no intention of completing his service obligation.  The statement he provided in support of his request for discharge shows he stated he would go AWOL again if his request was disapproved.  

3.  The record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  His record includes one instance of NJP and shows he was AWOL 609 days.  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

________  ________  ________  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.




      _______ _   _______   ___
               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)                                         AR20110002985



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110002985



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1