IN THE CASE OF:	  

		BOARD DATE:	    12 April 2012

		DOCKET NUMBER:  AR20110019582 


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 undesirable discharge (UD).

2.  The applicant states:

* the injustice is that he completed his overseas assignment
* it has been many years since this occurred
* when he was young he made mistakes
* he has learned a lot over the years
* he is proud to be an American

3.  The applicant provides:

* Self-authored statement
* Extract of his DA Form 20 (Enlisted Qualification Record)
* Multiple certificates of training, letters, transcripts, and congratulatory notes

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 records show he was born on 20 December 1949 and enlisted in the Regular Army at age 17 on 23 February 1967.  He held military occupational specialty 11D (Armor Reconnaissance Specialist).  

3.  He served in Korea from March 1968 to March 1969.  He was awarded or authorized the Armed Forces Expeditionary Medal (Korea), Marksman Marksmanship Qualification Badge with Rifle and Pistol Bars, and Sharpshooter Marksmanship Qualification Badge with Machine Gun Bar.

4.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for:

* 26 June 1967, being absent without leave (AWOL) from 16 to 24 June 1967
* 1 December 1967, being AWOL from 24 to 28 November 1967
* 29 January 1968, being AWOL from 21 to 26 January 1968
* 18 October 1968, willfully disobeying a lawful order
* 30 April 1969, being AWOL from 18 to 29 April 1969

5.  On 25 August 1970, he departed his unit in an AWOL status.  On 21 October 1970, he was dropped from Army rolls as a deserter.  He was apprehended by civil authorities in Ohio on 4 April 1974 and confined at the Allen County jail, Lima, OH.  He was returned to military control on 11 April 1974.  

6.  The complete facts and circumstances of the applicant's discharge processing are not available for review with this case.  However, his record contains:

	a.  A copy of Special Orders Number 125, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, dated 19 June 1974, discharging him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, effective 21 June 1974.

	b.  A duly-constituted DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 21 June 1974 under the provisions of Army Regulation 635-200, chapter 10, in lieu of a court-martial with an Undesirable Discharge Certificate.  This form also shows he completed 3 years, 2 months, and 14 days of creditable active service and he had 1,498 days of lost time. 
7.  On 25 February 1976, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

8.  He submitted:

* A self-authored statement wherein he chronicled his athletic and professional achievements subsequent to his discharge
* Multiple certificates of training, achievement, commendation, recognition, and transcripts or letters attesting to his success

9.  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 honorable or general discharge is authorized, a UD was considered appropriate at the time the applicant was discharged.

10.  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.

11.  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 contends that his UD should be upgraded.

2.  The applicant's record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 21 June 1974 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a trial by court-martial with a UD.


3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The applicant provided no information that would indicate the contrary.  Further, it is presumed that the applicant's discharge accurately reflects his overall record of service.

4.  With respect to his arguments:

	a.  The applicant was age 17 at the time he enlisted and age 20 when he was dropped from Army rolls as a deserter.  However, there is no evidence his extensive history of going AWOL was due to his age or that he was any less mature than other Soldiers who successfully completed their term of service.

	b.  The Army has never had a policy whereby a discharge is upgraded due to the passage of time. 

	c.  The applicant's post-service achievements are noted.  However, they do not overshadow his extensive history of misconduct that included four instances of NJP and nearly 1,500 days of lost time.

	d.  the fact that he completed an overseas tour in Korea does not negate his AWOL and desertion and it is not sufficiently mitigating to grant him the requested relief.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  In view of the foregoing, he is not entitled to an honorable or a general 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)                                         AR20110019582



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110019582



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1