IN THE CASE OF:	  

		BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20110021062 


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 his undesirable discharge (UD) to a medical discharge or an honorable discharge.

2.  The applicant states he cannot remember the reason for his UD because it occurred so long ago in 1972.

3.  He provides:

* DD Form 149 (Application for Correction of Military Record or Naval Record Under the Provisions of Title 10, U.S. Code, Section 1552)
* DD Form 214 (Report of Separation from Active Duty)
* Report of Roentgenological Examination
* Social Security Award Certificate
* Office of the Secretary of Army (OSA) Form 172 (Army Council of Review Boards, Case Report and Directive)

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 5 March 1974.

3.  His record contains a DD Form 458 (Charge Sheet) which shows he was charged with three specifications of being absent without leave (AWOL) from 
1 to 18 April 1974, 20 April to 8 May 1974, and 15 to 16 May 1974.

4.  His record contains a copy of a Standard Form 88 (Report of Medical Examination), dated 23 May 1974, which shows in item 77 (Examinee) he had no medical defects and was qualified for separation.

5.  On 24 May 1974, he voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  Prior to completing his request he consulted with his appointed counsel who advised him of his rights.  The applicant acknowledged:

	a.  he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person;

	b.  he had been advised of the implications that were attached to his request and that by submitting his request he also acknowledged he was guilty of the charges against him or of a lesser-included offense that also provided for the imposition of a bad conduct or a dishonorable discharge;

	c.  he did not desire further rehabilitation or desire to continue in the military;

	d.  he acknowledged he understood if his request was accepted he could be issued a UD, he understood the effects of such a discharge, and he understood that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits including all benefits administered by the Veterans Administration (VA);

	e.  he understood he could expect to encounter substantial prejudice in civilian life if he was issued an under other than honorable conditions (UOTHC) discharge;

	f.  he understood that once his request for discharge was submitted it could only be withdrawn with the consent of the commander who exercised court-martial authority; and

	g.  he was advised he could submit statements in his behalf; however, he elected not to do so.

6.  On 3 June 1974, his commander recommended approval of his request with the issuance of a UD.

7.  On the same date, the separation authority approved his request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with the issuance of an Undesirable Discharge Certificate.

8.  On 13 June 1974, he was discharged accordingly.  The DD Form 214 he was issued shows he completed 1 month and 27 days of total active service and he had 42 days of time lost.

9.  He submitted:

	a.  a Social Security Award Certificate, dated 3 April 1978, which shows he was awarded a monthly disability entitlement in the amount of $256.20.

	b.  a Report of Roentgenological Examination, dated 10 July 1981, which shows he had an erect spinal film depicting the thoracic and lumbosacral spine showing a straight spine with no significant lateral deviation.  The lumbar bodies and neural arches were intact throughout.  There was noted, however, an innocuous spina bifida occulta of S1. 

	c.  OSA Form 172, dated 17 March 1982, shows the Army Discharge Review Board disapproved his request for an upgrade of his discharge.

	d.  DD Form 149, dated 10 May 1983, which shows he applied to the ABCMR for correction of his record to upgrade his discharge to a general discharge under honorable conditions.

10.  His record contains a DA Form 2496 (Disposition Form) from the Military Review Boards Agency, dated 4 October 1983, which shows his case was returned without action because he did not respond to a letter requesting a 
DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

11.  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 discharge UD was normally considered appropriate.

12.  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.

13.  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.  

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the applicant's record nor did the applicant submit any evidence that shows he was being considered for a medical discharge or that he appeared before a medical evaluation board.  On the contrary, the evidence of record shows that after he was medically examined he was cleared for discharge.  

2.  The evidence of record shows the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.  He acknowledged he understood he could be ineligible for many or all benefits administered by the VA and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication that his request was made under coercion or duress.

3.  The evidence of record shows he had 42 days of lost time due to being AWOL.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The available evidence is not sufficient to support changing his discharge to a medical, general, or honorable 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 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)                                         AR20110021062



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ABCMR Record of Proceedings (cont)                                         AR20110021062



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