IN THE CASE OF:	  

		BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110019237 


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 under other than honorable conditions (UOTHC) to an honorable discharge (HD).

2.  The applicant states he was young and foolish and did not realize the consequences.  The applicant asks respectfully that the blemish on his record and his name be cleared.

4.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) in support of his application.

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's military personnel records show he enlisted in the Regular Army on 22 May 1973.  At the time he enlisted, the applicant was 24 years of age.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 91B (Medical Specialist).  The highest pay grade he achieved was pay grade E-4.

3.  On 12 September 1974, nonjudicial punishment was imposed against the applicant under Article 15 of the Uniform Code of Military Justice for being absent without leave (AWOL) from 4 September 1973 until on or about 6 September 1973.

4.  On 28 October 1974, court-martial charges were preferred against the applicant for being AWOL from 28 September 1974 until on or about 5 March 1975.

5.  On 24 March 1975, the applicant signed a memorandum requesting an explanation of his narrative reason for separation.

6.  On 2 May 1975, the applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  His service was characterized as under other than honorable conditions (UOTHC).  He completed 1 year, 5 months, and 29 days of net active service and accrued 162 days of lost time lost due to AWOL and confinement.

7.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an HD or general discharge (GD) is authorized, a discharge UOTHC is normally considered appropriate.

9.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.

10.  Army Regulation 635-200, paragraph 3-7b, states a GD 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge UOTHC should be upgraded because he was young and foolish and did not realize the consequences of his actions was carefully considered and found to be without merit.

2.  The applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of service in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.

3.  Therefore, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would have jeopardized his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.

4.  Records show the applicant was 25 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

5.  In view of the above, there is no basis for granting his 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 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)                                         AR20110019237



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ABCMR Record of Proceedings (cont)                                         AR20110019237



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