IN THE CASE OF:
BOARD DATE: 25 August 2011
DOCKET NUMBER: AR20110003374
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 under other than honorable conditions discharge.
2. The applicant states he currently receives social security income for mental problems. He needs help but he does not have anyone to help him. He was in prison for 15 years and has been out for 17 years. All he did was go absent without leave (AWOL).
3. The applicant did not provide any evidence.
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 for 2 years on 16 August 1971 and held military occupational specialty 13A (Field Artillery Basic). He served in Germany from on or about 12 January 1972 to on or about 24 November 1972.
3. His DA Form 20 (Enlisted Qualification Record) shows he was reported in an AWOL status on multiple occasions as follows:
* 28 October to 29 October 1972
* 25 November to 16 December 1972
* 18 December to 20 December 1972
* 22 December 1972 to 14 January 1973
* 15 February to 1 April 1973
* 3 April to 2 May 1973
* 7 May to 23 July 1973
4. On 26 July 1973, he again departed his unit in an AWOL status and on the same date, he was dropped from the rolls as a deserter. He surrendered to military authorities at Fort Knox, KY, on 1 October 1973.
5. On 3 October 1973, his command preferred court-martial charges against him for three specifications of being AWOL from 26 November to 17 December 1972, 18 to 21 December 1972, and 22 December 1972 to 15 January 1973.
6. On 9 October 1973, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).
7. In his request for discharge, he acknowledged that he was making the request of his own free will and he had not been subjected to any coercion. He also acknowledged he understood that if the discharge request was approved he could be furnished an Undesirable Discharge Certificate. He further acknowledged that he understood if such a discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.
8. On 18 October 1973, his immediate and intermediate commanders recommended approval of the request for discharge and recommended that he be issued an Undesirable Discharge Certificate.
9. On 29 October 1973, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty.
10. On 25 October 1973, consistent with the chain of command's recommendations, the separation authority approved the applicant's voluntary request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate. Accordingly, the applicant was discharged on 1 November 1973.
11. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged for the good of the service in lieu of trial by court-martial with an undesirable discharge. He completed a total of 1 year, 5 months, and 17 days of creditable active military service and he had a total of 272 days of lost time (226 prior to normal separation date and 46 days subsequent to his normal separation date).
12. On 24 February 1981, the Army Discharge Review Board denied his petition for an upgrade of his discharge.
13. 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 or general discharge is authorized, an undesirable discharge was considered appropriate at the time.
14. 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.
15. 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 was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. He voluntarily, willingly, and in writing requested discharge from the Army 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. His character of service is appropriate based on the facts of the case and his discharge accurately reflects his overall record of service.
2. Based on his record of indiscipline his 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, he is not entitled to either an honorable or a general discharge.
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) AR20110003374
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ABCMR Record of Proceedings (cont) AR20110003374
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