IN THE CASE OF:	  

		BOARD DATE:	      17 April 2012

		DOCKET NUMBER:  AR20110020682 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states that he had personal issues with his wife and three kids and could not satisfy both at the same time.  He goes on to state that he would like to have his discharge upgraded to a general discharge so that he can apply for medical benefits because he has become very sick and cannot afford medical care.  He also states that he was told that he could request a discharge after “one period.” 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or 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 enlisted in the Regular Army in Oakland, California on 17 June 1971 for a period of 2 years.  He was assigned to Fort Ord, California to undergo his basic training and extended his enlistment for a period of 1 year in order to obtain training as an aircraft maintenance apprentice.  He completed his basic training and was transferred to Fort Rucker, Alabama on 3 September 1971 to undergo his advanced individual training.

3.  On 6 March 1972 he went absent without leave (AWOL) and remained absent in desertion until he was returned to military control in Portland, Oregon on 17 January 1973 and was transferred to Fort Lewis, Washington where charges were preferred against him for the 317 day absence.

4.  The facts and circumstances surrounding the applicant’s administrative discharge is not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in Portland, Oregon in 1979.  However, the applicant’s records contain a duly authenticated DD Form 214 showing that the applicant was discharged under other than honorable conditions on 28 February 1973, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trail by court-martial.  He had served 9 months and 27 days of active service and had 317 days of lost time due to AWOL.

5.  There is no evidence in the applicant’s official records showing that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

6.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  An undesirable discharge was considered appropriate at the time.

7.  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.  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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the nature of his misconduct and the length of his absence.  Additionally, the Board does not upgrade discharges simply for the purpose of qualifying individuals for benefits that they otherwise would not be entitled to receive.  The applicant’s service  simply did not rise to the level of a general discharge.  Accordingly, there appears to be no basis to grant his request.

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)                                         AR20110020682





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110020682



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1