IN THE CASE OF:	   

		BOARD DATE:	7 February 2012

		DOCKET NUMBER:  AR20110014932


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, in effect, an upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states:

* he had over 2 years of service at the time his father became gravely ill
* he attempted to take leave, but he was denied
* he was very close to his father, and believed he might die
* he did not realize the consequences of his actions at the time
* his father had been hospitalized and he was heavily medicated
* his past actions are affecting his ability to obtain Department of Veterans Affairs (VA) benefits

3.  The applicant provides 12 third-party letters of character reference/support. 

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 21 July 1972.  He completed training and was awarded military occupational specialty 64C (Motor Transport Operator).  

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on the following three occasions:

* on 9 January 1973, for wrongful possession of marijuana on 8 January 1973
* on 4 April 1974, for failing to go at the prescribed time to his appointed place of duty on 28 March and 1 April 1974
* on 6 November 1974, for being absent without leave (AWOL) from his unit from on or about 21 October to 30 October 1974  

4.  On 14 May 1975, his unit reported that he was in an AWOL status.  He remained AWOL until he surrendered to his unit on 17 August 1975.

5.  On 20 August 1975, court-martial charges were preferred against him for absenting himself from his unit from on or about 14 May to 18 August 1975.

6.  On 10 September 1975, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service – in lieu of trial by court-martial.

7.  In his request for discharge, he indicated he understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He indicated he had been advised as to the possible effect of an undesirable discharge and understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 



8.  On 25 September 1975, the separation authority approved his request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 9 October 1975, he was discharged accordingly.  His DD Form 214 shows he completed 2 years, 11 months, and 2 days of total active service, with 109 days of time lost due to being AWOL.  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

10.  He provides 12 third-party letters of character reference/support from family members, friends, co-workers, and other community associates.  Each letter attests to his strength of character, professionalism in the performance of his duties, and general willingness to help others in their daily struggles; however, none of the letters addresses his performance of duty while in an active duty status or the circumstances that led to his discharge.

11.  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 was normally furnished an individual who was discharged for the good of the Service at the time.

12.  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.

13.  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.  The applicant's request for an upgrade of his discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  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 chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  

3.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, including NJP and multiple periods of AWOL and which started within 6 months of his enlistment, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is entitled to neither a general nor 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)                                         AR20110014932



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1