IN THE CASE OF:	  

		BOARD DATE:	  18 April 2012

		DOCKET NUMBER:  AR20110020352 


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 to upgrade his under other than honorable conditions discharge to an honorable discharge.

2.  He states he was young at the time and things did not seem as important.  He has worked hard to become a good citizen by paying his taxes and raising a family. 

3.  He provides:

* A copy of his DD Form 214 (Report of Separation from Active Duty)
* Several letters of support

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 30 April 1974.  He completed training and was awarded military occupational specialty 76Y (Armorer and Unit Supply Specialist).

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows the following information:

* Item 9 (Awards, Decorations and Campaigns) – he was awarded the Parachutist Badge and National Defense Service Medal 
* Item 18 (Appointments and Reductions) – the highest grade he attained was private first class/E-3
* Item 21 (Time Lost) – he was reported as absent without leave (AWOL) during two separate periods for a total of 114 days
* Item 35 (Record of Assignments) – he served at Fort Bragg, NC and Fort Campbell, KY

4.  He received nonjudicial punishment (NJP) on 20 August 1975 for failing to go to formation at the prescribed time on 11 and 12 August 1975. 

5.  On 25 September 1975, he was reported by his unit as AWOL.  He remained in an AWOL status until he returned to military control on 15 October 1975.

6.  The applicant was once again reported as AWOL on 20 October 1975.  He remained AWOL until 22 January 1976.

7.  On 29 January 1976, after consulting with counsel, he voluntarily submitted a request for discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He 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 the procedures and rights available to him.  

8.  In his request, he stated that he:

* was making his request of his own free will and had not been subjected to coercion whatsoever by any person
* liked the Army and wanted to continue to serve
* understood he could be discharged under other than honorable conditions and furnished with an Undesirable Discharge Certificate


* understood that as the result of issuance of such a discharge, he could be deprived of many or all Army benefits that he might be eligible for
* may be ineligible for many or all benefits administered by the Veterans Administration 
* may be deprived of his rights and benefits as a veteran under both Federal and state law
* understood that he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge

9.  On 13 February 1976, court-martial charges were preferred against him for two specifications of being AWOL from 25 September to 15 October 1975 and from 20 October 1975 to 22 January 1976.

10.  On 20 February 1976, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate and reduction to the grade of private/E-1.  On 26 March 1976, he was discharged accordingly.  The DD Form 214 he was issued shows he was credited with the completion of 1 year, 7 months, and 4 days of total active service with 114 days of lost time.  

11.  On 7 August 1981, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

12.  The applicant provided several letters in support of his request for an upgrade of his discharge.  These letters state he is:

* A wonderful husband and has not been in any trouble since he and his wife have been together
* A loving father and wonderful grandfather who is always there to support
* Loving and friendly to everyone he meets
* A wonderful role model and provider for his children and grandchildren
* Highly regarded by family, friends, and the community

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  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.
   
   b.  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.

   c.  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.  He departed AWOL on two occasions.  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.  His post-service conduct was also considered.  However, based on his record of indiscipline, including two periods of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  

5.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general discharge under honorable conditions.



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)                                         AR20110020352





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ABCMR Record of Proceedings (cont)                                         AR20110020352



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