IN THE CASE OF:	  

		BOARD DATE:	  6 December 2011

		DOCKET NUMBER:  AR20110011104 


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 an upgrade of his undesirable discharge to an honorable discharge.

2.  He states he had a death in his family and he used poor judgment by going absent without leave (AWOL) to attend his brother's funeral.  He adds that he had personal problems and hardship conditions.

3.  He provides his DD Form 214 (Certificate of Release or Discharge 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.  The applicant enlisted in the Regular Army on 30 June 1970 for a period of
3 years.  He completed training and he was awarded military occupational specialty 12A (pioneer).  The highest rank/grade he held was private (PV2)/E-2.

3.  On 24 May 1971, pursuant to his plea, he was convicted by a special court-martial of:

* being AWOL from 12 January to 4 March 1971
* being AWOL from 22 March to 31 March 1971
* escaping from a work detail on 1 April 1971

4.  On 3 June 1971, the applicant's commander advised him that he intended to recommend him for discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for his total apathy in regard to military authority and his frequent periods of AWOL.  He was advised of his rights.

5.  On the same date, the applicant's commander recommended his discharge under the provisions of Army Regulation 635-200, paragraph 6a(1), with an Undesirable Discharge Certificate.  The commander cited the following reasons as the basis for this action:

* the applicant's total apathy in regard to military authority and frequent periods of AWOL
* the applicant's performance of duty had been unsatisfactory and his supervisors agreed that rehabilitative efforts would be useless

6.  During the processing of his separation action the applicant:

* departed AWOL on 14 June 1971
* returned to military control on 2 September 1971 and was reassigned to the Personnel Control Facility (PCF) at Fort Gordon, GA
* placed in pre-trial confinement from 3 September through 7 October 1971
* departed AWOL on 12 October 1971
* returned to military control on 22 November 1971 at the PCF, Fort Gordon

7.  On 24 November 1971, charges were preferred against the applicant for being AWOL from:

* 14 June to 3 September 1971
* 12 October to 23 November 1971


8.  On 30 November 1971, having consulted with legal counsel, he voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.  He acknowledged he was not subjected to coercion with respect to his request for discharge and he had been advised of the implications attached to his request.

9.  He further acknowledged he understood if his discharge request were accepted, he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He elected not to submit a statement on his own behalf.  He further acknowledged he had been advised of the basis for his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge and of the effects of this request for discharge and the rights available to him.  He waived his rights in conjunction with this consultation.

10.  On 19 January 1972, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200,
chapter 10.  He directed the applicant be issued an Undesirable Discharge Certificate and reduced to the lowest enlisted rank.

11.  On 31 January 1972, he was discharged accordingly.  The DD Form 214 he received shows he was discharged under the provisions of Army Regulation
635-200, chapter 10, by reason of for the good of the service.  He completed 1 year and 8 days of total active service with 208 days of time lost.

12.  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.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who 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 at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise 


the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

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.  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.  He was convicted by a special court-martial of two periods of AWOL and for escaping from a work detail.  He subsequently had court-martial charges preferred on him for another two extensive periods of AWOL.

2.  As a result, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of court-martial.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

3.  This serious misconduct warranted an undesirable discharge.  Both his characterization of service and the reason for discharge were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.  Therefore, he was properly and equitably discharged and he is not entitled to an honorable or a general discharge.

4.  The Army has policies and procedures to deal with hardships.  The applicant has not submitted any evidence to show he properly requested assistance due to a death in the family or provided an explanation as to why he resorted to his numerous and extended periods of AWOL.  However, even if he did, it would not form the basis to upgrade his discharge.


5.  In view of the foregoing, there is no basis for granting the 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)                                         AR20110011104



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ABCMR Record of Proceedings (cont)                                         AR20110011104



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