BOARD DATE:	  15 December 2011

		DOCKET NUMBER:  AR20110012329 


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 to an honorable discharge.  

2.  He states, in effect, his misconduct was caused by his mental status and family issues that were created after he was drafted during the Vietnam War era.  His command didn't consider these issues during that time.  

3.  He provides his DD Form 214 (Report of Separation from Active Duty) and birth certificate.   

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 provided a copy of his birth certificate which shows he was born on 27 January 1952.  He was inducted into the Army of the United States on 29 August 1972 at the age of 20 years old.  

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on four separate occasions for failing to go at the time prescribed to his appointed place of duty and for being absent without leave (AWOL) from 13 to 28 November 1972.

4.  His service record also includes two convictions by a special court-martial on 10 January 1973 and 24 May 1973 of being AWOL during the following periods:

* 1 to 19 December 1972
* 13 to 18 January 1973
* 29 January to 3 April 1973

5.  He was barred from reenlistment on 15 April 1974.  

6.  On 22 November 1974, charges were preferred against him for being AWOL during the following periods in 1974:  

* 2 to 6 May
* 7 to 10 May
* 13 May to 20 November 

7.  He underwent a mental status evaluation on 11 December 1974 and was determined to have no mental conditions.  His service record does not indicate he was diagnosed with a mental condition during his tenure on active duty.  

8.  He consulted with legal counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  In doing so, he acknowledged he might encounter substantial prejudice in civilian life.  He also acknowledged he might be ineligible for many or all Army benefits administered by the Veterans Administration if an undesirable discharge was issued.  He elected to submit statements in his own behalf.  He stated he went AWOL because his parents were old and unable to work.  They lived with his girlfriend and his two children.  His girlfriend couldn't care for his parents and children.  Also, he stated he had financial problems.  

9.  The separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate.
10.  He was discharged on 3 March 1975 after completing 1 year, 4 months and 27 days of creditable active service with 398 days of lost time.

11.  His service record doesn't indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.

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

   a.  Chapter 10 of that regulation 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 or general discharge is authorized, a discharge UOTHC 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 (emphasis added), 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 contentions regarding his mental status and personal family problems are acknowledged.  However, his service record does not indicate he was diagnosed with a mental condition.  In addition he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct (AWOL) which led to his discharge.  His personal family problems are not sufficiently mitigating to warrant an upgrade of his discharge.

2.  He also contends that his command didn't consider his mental status and personal family issues during the time of his discharge.  However, his service record is void of evidence to support his claim.  

3.  The applicant’s record shows he was charged with the commission of the offense of AWOL which is punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

4.  His service record shows he received four Article 15s, two special court-martial convictions and had 398 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable 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)                                         AR20110012329





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ABCMR Record of Proceedings (cont)                                         AR20110012329



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