IN THE CASE OF:	  

		BOARD DATE:	  15 November 2011

		DOCKET NUMBER:  AR20110008637 


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 under other than honorable conditions discharge.

2.  The applicant states, through a letter dictated to his spouse, that after his mother had an accident his father needed his help to care for her.  Further, he cannot read or write and at the time of his discharge he did not understand what kind of discharge he was signing or what a dishonorable discharge meant.  He enlisted in the Navy in 1974 and they gave him an honorable discharge because he could not read or write.  The person who issued his discharge from the Army did not explain that it was a bad discharge and although he wanted to stay, he was discharged thinking it was a good discharge.

3.  The applicant provides a copy of his DD Form 214 for the period ending
14 March 1977 and letter of support from his spouse.

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.  On 10 March 1976, the applicant was involuntarily ordered to active duty from the Oklahoma Army National Guard (OKARNG).  He held military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman) and he was reassigned to Germany.

3.  A DA Form 751 (Telephone or Verbal Conversation Record), dated
9 February 1977, shows the applicant was absent without leave (AWOL) from
21 September 1976 to 2 February 1977.  He was apprehended in California on 
3 February 1977 and he was returned to military control.

4.  At the time of his apprehension, the applicant submitted a personal statement indicating he went home on a 30-day leave and he did not intend to return because he did not like the Army.  The statement is handwritten and signed by the applicant.

5.  On 14 February 1977, a military lawyer informed the applicant by letter that he was currently pending trial by a court-martial under the provisions of Article 86, Uniform Code of Military Justice (UCMJ) for his AWOL offense.  He was advised that no person can make, force, or coerce him to ask for a discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service – in lieu of trial by court-martial.  He was further advised that if his request for voluntary discharge is accepted he would normally be discharged under other than honorable conditions and that he would be deprived of his rights and benefits as a veteran under both Federal and State law.  He was provided a list containing most Federal veteran's benefits available showing the effect of an under other than honorable conditions discharge.

6.  On the same date, the applicant submitted a formal request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive an under other than honorable conditions discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an under other than honorable conditions discharge.


7.  In his request for discharge he further indicated he understood that by requesting discharge he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request were approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  On 16 February 1977, the applicant's immediate and intermediate commanders recommended approval of his request for discharge for the good of the service – in lieu of trial by court-martial.  The commanders further recommended the applicant receive an under other than honorable conditions discharge.

9.  On 24 February 1977, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial with an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 14 March 1977, he was discharged accordingly.  He completed 7 months and 13 days of net active service this period with 135 days of time lost due to AWOL.

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

12.  Under the UCMJ, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days, terminated by apprehension, is a dishonorable discharge and confinement for 1 1/2 years.

13.  He provided a letter from his spouse stating he cannot read or write and he does not understand the meaning of a lot of words without explanation.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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, 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, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

	c.  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 contention that he did not understand the type or characterization of discharge he was requesting because he was not able to read or write was carefully considered.  However, the evidence shows he submitted a handwritten statement at the time of his apprehension indicating he no longer wanted to be in the Army.  This statement, his legal consultation, and his request for discharge are all authenticated with his signature.  Further, the letter from his spouse confirming his inability to read or write is not corroborated by any other independent source such as an education specialist, school transcripts, or literary test scores.

3.  The records show his voluntary separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  Based on the seriousness of his offense, his service clearly did not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.


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)                                         AR20110008637



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ABCMR Record of Proceedings (cont)                                         AR20110008637



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