IN THE CASE OF:	  

		BOARD DATE:	  3 April 2012

		DOCKET NUMBER:  AR20110021465 


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 his discharge under other than honorable conditions (UOTHC) be upgraded to a general.

2.  The applicant states he has become an honorable and lawful citizen.  He further contends that he has given to the homeless, stayed out of trouble, and has not received any parking, speeding, or any other tickets.

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 on 20 April 1972.  He completed training and he was awarded military occupational specialty 11B (Rifleman).  The highest rank/grade he attained while serving on active duty was private 
(PV2)/E-2.

3.  A DD Form 458 (Charge Sheet) indicates he was charged for being absent without leave (AWOL) during the period 14 July 1972 through 23 February 1973.

4.  On 23 February 1973, his chain of command recommended trial by a Special Court-Martial empowered to adjudge a bad conduct discharge.

5.  On 27 March 1973, the applicant consulted with legal counsel and 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 of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  In his request for discharge, he indicated he understood by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  Although he indicated he elected to submit statements in his own behalf, there is no such statement in his record.

7.  On 13 April 1973, the separation authority approved the applicant's request for discharge and directed he receive an UOTHC discharge.  On 1 May 1973, the applicant was discharged accordingly.  His DD Form 214 shows he completed a total of 5 months of creditable active military service with 224 days of lost time due to AWOL.

8.  On 11 April 1988, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 28 April 1988, The Adjutant General, U.S. Army Reserve Components Personnel and Administration Center, St. Louis, MO notified the applicant that after careful consideration of his military records and all other available evidence, the ADRB determined he was properly and equitably discharged.  Accordingly, his request for a change in the character and/or reason of his discharge was denied.
9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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 under other than honorable conditions is normally considered appropriate.

10.  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 contention that his discharge should be upgraded was carefully considered and 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 and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10 to avoid a trial by court-martial which may have resulted in a felony conviction.

3.  Based on his record of indiscipline which included over 7 months of
AWOL time, his post-service accomplishments following his discharge are not sufficient to mitigate the misconduct that led to his voluntary request for discharge. 

4.  The evidence shows the applicant was properly and equitably 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.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.



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)                                         AR20110021465



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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