IN THE CASE OF:	  

		BOARD DATE:	  6 October 2011

		DOCKET NUMBER:  AR20110006756 


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 upgrade of his undesirable discharge.

2.  He states that he has made many corrections to his life and now wishes to be considered for an upgrade of his discharge. 

3.  He provided a copy of his DD Form 214 (Report of Separation from Active Duty).  

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 record shows he enlisted in the Regular Army on 25 April 1974.  After the completion of training, he was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).
3.  On 17 June 1975, he received nonjudicial punishment (NJP) under the Uniform Code of Military Justice (UCMJ), for going AWOL from 9 to 13 June 1975.  He received NJP again 21 August 1975 for failing to go to his prescribed place of duty at the prescribed time on 19 and 20 August 1975.   

4.  A DD Form 458 (Charge Sheet) dated 23 July 1976, shows he was charged with one specification of being AWOL from 17 January to 10 July 1976.  

5.  The applicant was given a mental status evaluation and this document shows he had no known psychiatric disorders. 

6.  Prior to completing his request for discharge for the good of the service, the applicant was afforded the opportunity to consult with counsel and was fully advised of the nature of his rights under the UCMJ.  

7.  On 26 July 1976, he voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10 for the good of the service.  In his request the applicant stated the reason he went AWOL was because the Army was sending him back to Germany and he had just returned approximately 8 weeks prior.  He tried everything possible to get out of the assignment because his wife would not be able to go unless he reenlisted.  He also stated that his wife had left him and he wanted a discharge so that he and his wife could reunite.  He also had a good paying job waiting for him once he returned home.  

8.  In his request he also stated he understood he could be discharged under other than honorable conditions and furnished with an Undesirable Discharge Certificate.  He added that he understood that as the result of issuance of such a discharge, he could be deprived of many or all Army benefits that he might be eligible for, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and state law.  He also understood that he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

9.  The applicant's chain of command unanimously recommended approval of his request for discharge for the good of the service and issuance of an Undesirable Discharge Certificate.

10.  On 3 September 1976, the appropriate approval authority approved the applicant's request for discharge, for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, and directed he be furnished an Undesirable Discharge Certificate and be reduced to the grade of private/E-1.
11.  Accordingly, he was discharged under other than honorable conditions on 
23 September 1976, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service-in lieu of trial by court-martial.  His DD Form 214 shows he completed 1 year, 11 months, and 2 days of net active service and had a total of 181 days of lost time due to AWOL. 

12.  His record does not document any acts of valor or special recognition and does not show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.  

13.  Army Regulation 635-200, in effect at the time, set forth the sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge may submit, at any time after the charges had been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  A discharge under other than honorable conditions was normally considered appropriate, but the separation authority may have directed a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would have been improper.

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.  Paragraph 3-7b of the same regulation, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his Undesirable Discharge should be upgraded because he has made some positive corrections in his life was carefully considered.



2.  The evidence of record shows that he was administered NJP on two separate occasions for being AWOL from his unit and for failing to report to his place of duty at the prescribed time.  

3.  He was charged with a violation of the UCMJ for which a bad conduct or dishonorable discharge could have been imposed.  Rather than face court-martial, he opted to submit a request for discharge in lieu of trial by court-martial, for the good of the service.  His request for discharge was approved.

4.  Accordingly, he was discharged under the provisions of chapter 10 of Army Regulation 635-200.  Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.  

5.  The evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows that the applicant was aware of that prior to requesting discharge.  Therefore, the reason for discharge and the characterization of service were both proper and equitable.

6.  His record does not contain any acts or special recognition which would warrant an upgrade of his discharge.  As such, there is no basis for granting the applicant's request for an upgrade of his 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)                                         AR20110006756





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ABCMR Record of Proceedings (cont)                                         AR20110006756



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