IN THE CASE OF:	  

		BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110009927 


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 (UD) to a general, under honorable conditions discharge (GD) or honorable discharge (HD).

2.  The applicant states:

   a. the judge advocate general (JAG) officers falsely informed him concerning the type of discharge and benefits he would receive;
   
   b.  he resigned from the Army for the good of the service because he was informed he would receive all benefits; and
   
   c.  the Army's failure to consider his known mental disability at the time of his discharge prevents him from applying for disability benefits.
   
3.  The applicant provides no additional documents.

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 on 21 March 1972.  He was trained in and awarded military occupational specialty 76A (Supply Clerk).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

	a.  Item 33 (Appointments and Reductions) he was advanced to private (PV2/E-2) on 14 August 1972, which was the highest rank/grade he attained during his service.  It also shows he was reduced to private (PVT/E-1) on
16 November 1973.

	b.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date Expiration Term of Service) he was reported absent without leave (AWOL) and/or dropped from the rolls (DFR) of his organization during the following periods totaling 54 days of time lost:

* 9 - 14 June 1972 			(6 days - AWOL)
* 2 - 6 July 1972				(5 days - AWOL)
* 8 July - 9 August 1973 		(33 days - AWOL)
* 10 - 19 August 1973		(10 days - DFR)

4.  He accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) four times -- 18 June, 12 July, and 5 September 1972, for being AWOL and on 14 November 1972, for breaking restriction.

5.  On 24 August 1973, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 8 July 1973 to on or about 20 August 1973.

6.  On 28 August 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).

7.  In his request for discharge he acknowledged his understanding that 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.  He also indicated that he understood he could face substantial prejudice in civilian life because of an undesirable discharge and indicated he would submit a statement on his own behalf.

8.  In the statement he submitted he indicated, in part:

* I had five Article 15's and zero Court-Martial
* I am now pending charges for one AWOL offense of 46 [sic] days
* I hate the Army to no end, completely
* If I receive a UD I will accept it and if I am returned to duty I will go AWOL again
* In my opinion the Army is of no use to me and I sure as hell am not going to be of any use to the Army

9.  The applicant's record contains a Standard Form 88 (Report of Medical Examination), dated 28 August 1973, which shows he underwent a separation physical and was found qualified for release from active duty (REFRAD).  Item 74 (notes) contains the entry "I AM IN GOOD HEALTH" and the applicant's signature.

10.  On 16 November 1973, the separation authority approved the applicant's request for discharge and directed that he receive a UD discharge certificate under the provisions of chapter 10, Army Regulation 635-200.  On 23 November 1973, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he completed a total of 1 year, 5 months, and 29 days of creditable active military service and accrued 54 days of lost time due to AWOL.

11.  On 12 June 1980, after having carefully reviewed the applicant's record and the issues he presented, the Army Discharge Review Board concluded the applicant's discharge was proper and equitable and it voted to deny his request for an upgrade of his discharge.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  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 discharge (HD) or GD is authorized, an under other than honorable conditions discharge is normally considered appropriate.  However, a UD was considered appropriate at the time the applicant was discharged.

   b.  Paragraph 3-7a provides that an HD 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 GD 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UD discharge should be upgraded to a GD or HD because he was falsely informed concerning the type of discharge and benefits he would receive.  The evidence of record confirms the applicant was informed of the possible effects of a UD and resulting loss of benefits during his separation processing.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL for 43 days.  After consulting with legal counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  Considering the multiple AWOL offenses during his period of active duty, his service clearly did not support a GD or HD.

4.  Further, his record shows he underwent a separation physical and was found qualified for REFRAD.  As a result, he clearly was not suffering from a disqualifying medical condition or illness that would have supported his separation processing through medical channels.


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)                                         AR20110009927





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ABCMR Record of Proceedings (cont)                                         AR20110009927



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