BOARD DATE:	  3 April 2012

		DOCKET NUMBER:  AR20110018482 


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 upgrade of his under other than honorable conditions discharge to a general/under honorable conditions discharge.

2.  The applicant states, in effect, the reason he departed his unit in an absent without leave (AWOL) status was because his father died and he became the main income provider for his family.  He attests that he submitted hardship paperwork which was subsequently either lost or misplaced so, it was never processed.  He further attests that he showed a copy of this documentation to a Mr. L______z during his discharge hearing and Mr. L______z opined that it justified another hearing, but it would require the applicant to appear in person before a board in Washington.  As a result, the matter was dropped because there was no way he could afford the trip to Washington.  He concludes that over 40 years have passed since his discharge and his copies of his hardship paperwork have been lost.

3.  The applicant provides no additional evidence. 

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 31 March 1971 and possessed military occupational specialty 36K (Wireman).  The highest rank/grade he attained while serving on active duty was private/E-2.  However, at the time of his discharge he held the rank/grade of private/E-1.

3.  On 18 May 1971, the applicant accepted punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.

4.  The applicant's record contains a DA Form 3545 (Deserter Wanted by the Armed Forces), dated 16 December 1971, which shows he departed his unit in an AWOL status on 16 July 1971 and was dropped from the unit rolls on 14 August 1971.

5.  The applicant's record contains a letter from the Federal Bureau of Investigation (FBI), dated 10 July 1974, and a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) which shows he was apprehended by the FBI on 10 July 1974 and was confined in the hands of civilian authorities.

6.  The complete facts and circumstances leading to the applicant's discharge are not available for review with this case.  However, his record contains Headquarters, U.S. Army Training Center Engineer and Fort Leonard Wood, MO, Special Orders Number 211, dated 30 July 1974, which show he was to be discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (for the good of the service - in lieu of trial by court-martial) on 2 August 1974 with service characterized as under other than honorable conditions and the issuance of a DD Form 258A (Undesirable Discharge Certificate).

7.  His record also contains a DD Form 214 (Report of Separation from Active Duty) which shows he was discharged accordingly on 2 August 1974.  He completed 4 months and 8 days of total active service with 624 days of time lost, 466 of which were subsequent to the expiration of his term of service. 

8.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  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 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 an individual who was discharged for the good of the Service at the time the applicant was discharged.

10.  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 contention that his record should be corrected by upgrading his under other than honorable conditions discharge to a general/under honorable conditions discharge was carefully considered and determined to lack merit.

2.  The fact that his father passed away is regrettable.  However, there is no evidence of record and he did not provide any evidence that shows he sought help with coping with the loss of his father, submitted a hardship discharge request, or that he contested the nature of his discharge.

3.  The evidence of record shows he was AWOL for nearly 3 years until he was apprehended by the FBI.  Although his record is void of the specific facts and circumstances surrounding his discharge, it appears he was charged with the commission of offense(s) 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.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  In view of the foregoing, 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)                                         AR20110018482





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ABCMR Record of Proceedings (cont)                                         AR20110018482



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