IN THE CASE OF:	  

		BOARD DATE:	  27 September 2011

		DOCKET NUMBER:  AR20110004854 


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.  

2.  He states that due to psychological problems magnified by basic training he went absent without leave (AWOL) but surrendered himself to the proper authority.  

3.  He provides:

* DA Form 20 (Enlisted Qualification Record), page 3
* His request for discharge for the good of the service
* Report of Medical Examination, dated 29 October 1971
* Addendum to 1AA Form 515 (Transmittal of Court-Martial Charges), dated 28 January 1971
* UD Certificate, dated 17 February 1971
* Three character reference letters

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 military records show he enlisted in the Regular Army, in pay grade E-1, on 17 March 1970, for 3 years.  He did not complete advanced individual training; therefore, he was not awarded a military occupational specialty (MOS). 

3.  On 20 August 1970, he was dropped from the rolls of his organization for being AWOL.  He returned to military control on or about 19 October 1970.

4.  A Report of Psychiatric Evaluation, dated 9 November 1970, shows the examining physician found the applicant had no significant psychiatric illness.  The applicant was cleared for any administrative and judicial disposition as deemed fit by the command. 

5.  On 24 November 1970, the applicant’s unit commander recommended the applicant be discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service with an UD Certificate.

6.  In November 1970, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be discharged under conditions other than honorable and furnished a UD Certificate.  He further acknowledged he understood as a result of the issuance of such a discharge he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected not to submit a statement in his own behalf.

7.  On 23 December 1970, the applicant’s battalion commander stated that the applicant’s request for discharge for the good of the service in lieu of trial by court-martial was not favorably considered.

8.  An IAA Form 515, dated 28 January 1971, listed an additional charge against the applicant of one specification of being AWOL from 12 to 25 January 1971.

9.  It appears that on an unspecified date the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of an UD Certificate.

10.  He was discharged in pay grade E-1 on 17 February 1971, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial, with an UD Certificate.  He was credited with completion of 7 months and 2 days of net active service and 119 days of time lost.

11.  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.

12.  He provided three character reference letters wherein the individuals stated that the applicant had always been a hard working person, is totally and permanently disabled, and it was unjust for him to receive an UD considering his mental condition while in the service and at the time of his discharge.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 stated a member who had 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 in lieu of trial by court-martial at any time after charges had been preferred.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.  An UD was normally considered appropriate at the time.

14.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows court-martial charges were preferred against the applicant for 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.  

2.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  He also acknowledged he understood he could be furnished an UD Certificate.  He was discharged accordingly on 17 February 1971.

3.  He has provided no evidence or a convincing argument to show his discharge should be upgraded and his military record contains no evidence which would entitle him to an upgrade of his UD.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable or a general discharge.

4.  Without evidence to the contrary, it appears his administrative separation action was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  

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)                                         AR20110004854



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ABCMR Record of Proceedings (cont)                                         AR20110004854


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