IN THE CASE OF:	  

		BOARD DATE:  18 January 2012

		DOCKET NUMBER:  AR20110014054 


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.  The applicant states he was unaware that his discharge had not been upgraded.  He assumed he had done so when he joined the U.S. Navy at a later date.

3.  The applicant provides his:

* U.S. Navy DD Form 214 (Certificate of Release or Discharge from Active Duty)
* U.S. Army DD Form 214 (Report of Separation from Active Duty)
* DD Form 4 (Enlistment Contract - Armed Forces of the United States)

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 4 June 1974 and he held military occupational specialty 13B (Field Artillery Basic).  The highest rank/grade he attained during his RA service was private (PV2)/E-2.

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* on 9 July 1974, for being absent without leave (AWOL) from 8-9 July 1974
* on 30 October 1974, for failing to go at the time prescribed to his appointed place of duty on 29 October 1974

4.  On 17 June 1975, after having been twice reported AWOL, he departed his unit in an AWOL status and on the same date, he was dropped from the rolls of the Army as a deserter.  He was apprehended by civil authorities and returned to military control on 21 August 1975.

5.  On 27 August 1975, court-martial charges were preferred against him for three specifications of AWOL from 14 to 17 April 1975, 28 April to 21 May 1975, and 17 June to 21 August 1975.

6.  On 27 August 1975, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for offenses punishable by a bad conduct discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

7.  In his request for discharge, he acknowledged he understood by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or a dishonorable discharge.  He acknowledged he was making this request of his own free will and he had not been subjected to any coercion.  He also acknowledged he had been advised of the implications that were attached to his request.  He further acknowledged he understood that if the discharge request 

was approved, 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.  

8.  On 2, 4, and 11 September 1975, his immediate, intermediate, and senior commanders recommended approval of the applicant's discharge request with the issuance of an Undesirable Discharge Certificate.

9.  On 22 October 1975, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed his reduction to the lowest enlisted grade and issuance of an Undesirable Discharge Certificate.  On 6 November 1975, the applicant was accordingly discharged.

10.  The DD Form 214 he was issued shows he was discharged for the good of the service - in lieu of a court-martial with an under other than honorable conditions character of service and issued an Undesirable Discharge Certificate. This form further confirms he completed 1 year, 2 months, and 4 days of total active service with 116 days of time lost.

11.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations.

12.  He submitted a copy of his U.S. Navy DD Form 214 that shows he served from 28 February to 22 June 1987 and he was discharged upon expiration of his term of enlistment.

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, the 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.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He 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 his rights were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

2.  The fact that he served in the U.S. Navy in 1987 is commendable; however, it has no bearing on his Regular Army service during which he was AWOL on multiple occasions.

3.  Based on his record of indiscipline that included two instances of NJP and a history of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  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)                                         AR20110014054



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ABCMR Record of Proceedings (cont)                                         AR20110014054



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