IN THE CASE OF:	

		BOARD DATE:	    3 April 2012

		DOCKET NUMBER:  AR20110020618 


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, upgrade of his discharge.

2.  The applicant states, in effect, that he was forced to sign papers for discharge, if not he would be put in jail. 

3.  The applicant provides a copy of DD Form 293 (Application for the Review of Discharge).

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 was inducted into the Army of the United States on                   25 March 1971.  His records show he completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  He served in the Republic of Vietnam from 14 October 1971 through 29 June 1972.  The highest rank/grade he attained while serving on active duty was specialist four/E-4.  

3.  The applicant received nonjudicial punishment under the provisions of     Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 6 July 1971, for being absent without leave (AWOL) 
* 2 September 1971, for leaving his appointed place of duty
* 3 June 1972, for disobeying a lawful order
* 30 October 1972, for being AWOL 

4.  On 1 November 1973, charges were preferred against the applicant for being AWOL for the period 27 November 1972 through 29 October 1973. 

5.  On 6 November 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated trail by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of (UOTHC), and of the procedures and right that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

6.  In his request for discharge, the applicant indicated he understood that by requesting a discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  The DD Form 214 (Armed Forces of the United Stated Report of Transfer or Discharge) he was issued confirms he completed 9 months and 19 days of total creditable active military service with 482 days of lost time.

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

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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 at any time after the charges have been preferred.  At the time, an undesirable discharge, under other than honorable conditions was normally considered appropriate.

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’s argument his discharge should be upgraded was carefully considered and it was determined to be without merit.

2.  The applicant’s 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 trail by court-martial. Therefore, the applicant voluntarily requested discharge from the Army in lieu of trail by court-martial.

3.  The available evidence shows he was properly and equitable discharged in accordance with the regulations in effect at the time.  There is no evidence 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.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  The available evidence shows the applicant was AWOL, charged with the commission of offenses punishable under the UCMJ with a punitive discharge, and that he accumulated 482 days of lost time.  

5.  Based on his record of indiscipline, the applicant’s service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant 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)                                         AR20110020618



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ABCMR Record of Proceedings (cont)                                         AR20110020618



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