IN THE CASE OF:
BOARD DATE: 10 January 2012
DOCKET NUMBER: AR20110013407
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 a general discharge.
2. He states, in effect, that it has been over 30 years since his discharge.
3. He provides his DD Form 214 (Report of Separation 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant's military records show that he enlisted in the Regular Army on 29 February 1972. The highest rank/grade he held was private first class/pay grade E-3.
3. He accepted nonjudicial punishment (NJP) on 29 October 1973 for being absent without leave (AWOL) during the period 18 to 23 October 1973.
4. On 28 February 1974, court-martial charges were preferred against him for being AWOL during the period on or about 12 November to 11 December 1973 and on or about 14 December 1973 to 26 February 1974.
5. His complete discharge packet is not contained in his records. However, on 17 July 1974 he was discharged under the provisions of Army Regulation
635-200, chapter 10, for the good of the service - in lieu of court-martial, with issuance of a DD Form 258A (Undesirable Discharge Certificate). The DD Form 214 he was issued shows he completed a total of 2 years and 17 days of total creditable active service with 122 days time lost.
6. 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.
7. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 10 stated a member who had 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(s) charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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 to an individual who was discharged for the good of the service.
8. Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.
DISCUSSION AND CONCLUSIONS:
1. He received NJP for being AWOL for 5 days and had court-martial charges preferred against him for being AWOL for an additional 105 days.
2. 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. At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.
3. This serious misconduct warranted a discharge under other than honorable conditions. Both his characterization of service and the reason for discharge were appropriate considering the facts of the case. Therefore, he was properly and equitably discharged and he is not entitled to a general discharge. The records contain no indication of procedural or other errors that would have jeopardized his rights.
4. His discharge was based on the circumstances at the time. The fact that it has been over 30 years since his undesirable discharge does not mitigate the basis of his discharge.
5. Therefore, 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) AR20110013407
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