IN THE CASE OF:	  

		BOARD DATE:	  15 November 2011

		DOCKET NUMBER:  AR20110011392 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he served his country and believes that he should have an honorable discharge because he is totally disabled and desires to have benefits. 

3.  The applicant provides no additional documents with 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 enlisted in the Regular Army on 30 January 1970 for a period of 3 years.  He completed his basic, advanced, and airborne training and was transferred to Fort Bragg, North Carolina.

3.  On 13 October 1970, he was honorably discharged for the purpose of immediate reenlistment after serving 8 months and 12 days of active service.  On 14 October 1970 he reenlisted for a period of 4 years and assignment to Hawaii.

4.  On 2 November 1970, he went absent without leave (AWOL).  He was confined in the hands of civil authorities on a charge of larceny in Rushville, Indiana from 7 November to 28 December 1970.  He was returned to military control and confined for 3 days before he departed AWOL again from 1 January to 15 April 1971.  He went AWOL again from 17 March to 18 March 1971 and was confined from 19 May to 31 August 1971.

5.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in Phoenix, Arizona in 1973.  However, his records do contain a duly-authenticated DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) signed by the applicant which shows that on   31 August 1971, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by             court-martial.  He had served 1 month and 16 days of active duty during his current enlistment for a total of 9 months and 28 days of active service.  He had 272 days of lost time due to AWOL and confinement.

6.  On 15 July 1977, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge contending that his prior honorable discharge for his first period of service warranted an upgrade of his undesirable discharge to a general discharge.  On 23 November 1977, after reviewing the facts and circumstances of his discharge, the ADRB determined that his discharge was both proper and equitable and voted unanimously to deny his request for an upgrade of his discharge.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit 

guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

8.  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.

9.  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.  In the absence of evidence to the contrary, it is presumed the applicant's voluntary request for discharge for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations and that the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he would have voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he would have admitted guilt to the charge against him.

3.  The applicant's contentions have been noted; however, given his overall undistinguished record of service, his contentions are not sufficiently mitigating to warrant relief.  He had almost as much lost time as he had good time and his service simply did not rise to the level of even a general 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)                                         AR20110011392





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ABCMR Record of Proceedings (cont)                                         AR20110011392



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