BOARD DATE:	  20 October 2011

		DOCKET NUMBER:  AR20110008494 


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, in effect, that his undesirable discharge (UD) be upgraded to a general discharge.

2.  The applicant states:

* He was undergoing a divorce and he was denied help from his chain of command 
* He rode to Dallas, TX with a friend while on a weekend pass; he was arrested and imprisoned with his friend; the charges were dropped, but he remained in jail 30 days
* Military Police officials took him back to Fort Sill, OK, where he was put on extra duty and ultimately court-martialed
* He was not provided any help regarding his mental condition and emotions at the time

3.  The applicant provides no additional evidence in support of his application.

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 records show he was inducted into the Army of the United States on 8 July 1970 and he was awarded military occupational specialty 68F (Aircraft Electrician).  

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 5 to 20 October 1970.

4.  On 10 November 1970, he departed his unit in an AWOL status and he was subsequently dropped from Army rolls as a deserter.  He returned to military control on 15 January 1971.

5. On 15 April 1971, he was convicted by a special court-martial of one specification of being AWOL from 10 November 1970 to 15 January 1971.  The court sentenced him to confinement at hard labor for 99 days and a forfeiture of $25.00 pay for 6 months.  The convening authority approved the sentence on
20 April 1971; but he suspended the confinement. 

6.  His service records do not contain the complete facts and circumstances surrounding his separation process.  However, his DD Form 214 shows he was discharged on 30 September 1971 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) for the good of the service in lieu of trial by court-martial with a UD.  He completed 7 months and 25 days of creditable active service and he had 208 days of lost time.

7.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  A UD was normally considered appropriate at the time the applicant was discharged.


9.  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.

10.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged on 30 September 1971 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial with a UD.

2.  His separation processing appears to be in accordance with the applicable regulation.  All requirements of law and regulation were met, the rights of the applicant were presumably fully protected throughout the separation process, and his discharge accurately reflects his overall record of short and undistinguished service.  

3.  The available evidence does not support the issuance of an honorable or general discharge.  In view of the foregoing, there is no basis for granting his request.

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)                                         AR20110008494



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ABCMR Record of Proceedings (cont)                                         AR20110008494



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