IN THE CASE OF:	  

		BOARD DATE:  1 March 2012

		DOCKET NUMBER:  AR20110017498


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 discharge, from an under other than honorable conditions discharge to an under honorable conditions (general) discharge.

2.  The applicant states he was young during his period of service and he did some things he deeply regrets.  He has been doing his best since those mistakes to correct himself and to live a better life.  He states he has fallen on hard times and he is currently homeless.  He concludes by stating he would like to apply for service-connected disability from injuries he sustained while serving in the Army.

3.  The applicant also requests a personal appearance before the Army Discharge Review Board (ADRB) in Dallas, TX.

4.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 was inducted into the Army of the United States for a 2-year term on 25 May 1971.  He entered active duty at Fort Polk, LA, where he completed basic combat training.  He was reassigned to Fort Sam Houston, TX, for the purpose of attending advanced individual training in military occupational specialty (MOS) 91A (Medical Corpsman); however, his records indicate he failed to complete MOS training.

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

* on 8 July 1971, for failing to go at the prescribed time to his appointed place of duty on 5 July 1971
* on 13 July 1971, for breaking restriction on 11 July 1971
* on 9 August 1971, for being absent without leave (AWOL) from his unit from on or about 8 August 1971 to on or about 9 August 1971
* on 14 September 1971, for being AWOL from his unit from on or about 1 September 1971 to on or about 13 September 1971
* on 21 September 1971, for being AWOL from his unit from on or about 17 September 1971 to on or about 18 September 1971

4.  On 4 October 1971, his unit reported him in an AWOL status.  He remained AWOL until he surrendered to military control on 18 January 1972.

5.  On 19 January 1972, court-martial charges were preferred against him for one specification of being AWOL from on or about 4 October 1971 to on or about 18 January 1972.

6.  On 1 February 1972, 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 the procedures and rights 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 if his request for discharge were accepted he might 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 he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  On 11 February 1972, the separation authority approved his request for discharge and directed issuance of an Undesirable Discharge Certificate.  On 22 February 1972, he was discharged accordingly.  His DD Form 214 shows he was credited with the completion of 7 months and 17 days of total active service with 41 days of lost time due to AWOL.  The highest rank/grade he attained while serving on active duty was private/E-1.

9.  There is no indication the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10, in effect at the time, stated that 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7b, states 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.

12.  Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  The ABCMR staff will review each application to determine if it meets the criteria for consideration by the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.




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 Army Regulation 635-200, chapter 10, 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 did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

5.  With respect to the personal hearing, his request for a personal appearance hearing before the ADRB was carefully considered.  The statute of limitations for an ADRB hearing expired in February 1987.

6.  By regulation, an applicant is not entitled to a hearing before this Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing before this Board is not necessary to serve the interest of equity and justice in this case.

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 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)                                         AR20110017238



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ABCMR Record of Proceedings (cont)                                         AR20110017498



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