IN THE CASE OF:	   

		BOARD DATE:	28 February 2012

		DOCKET NUMBER:  AR20110017963


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 was young, away from home, and drinking when he made a bad mistake; however, he knows he was wrong.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) and three third-party character references. 

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 28 December 1973, at Fort Knox, KY, for the purpose of attending basic training; however, he did not complete training.

3.  On or about 13 January 1974, his unit reported him in an absent without leave (AWOL) status and he remained AWOL until on or about 7 February 1974.

4.  On or about 26 February 1974, his unit reported him in an AWOL status and he remained AWOL until on or about 22 July 1974.

5.  On 30 July 1974, court-martial charges were preferred against him for absenting himself from his unit on 2 occasions, from on or about 13 January to 
7 February 1974, and from on or about 26 February to 22 July 1974.

6.  On 2 August 1974, 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 Uniform Code of Military Justice (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 acknowledged that he understood 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 of 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 Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 

8.  On 16 August 1974, the separation authority approved his request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 23 September 1974, he was discharged accordingly.  His DD Form 214 shows he completed 2 months and 23 days of total active service, with 183 days of time lost due to being AWOL.  The highest rank/grade he attained while serving on active duty was private/E-1.

9.  On 11 January 1977, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

10.  He provides 3 third-party letters of character reference/support from his spouse and 2 friends.  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 multiple periods of AWOL which started within 6 weeks of his enlistment, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His 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)                                         AR20110017963



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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