IN THE CASE OF:	  

		BOARD DATE:	  26 April 2012

		DOCKET NUMBER:  AR20110021479 


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 be upgraded to a general discharge (GD).

2.  The applicant states he was told he could upgrade his discharge to a GD which he needs to receive medical and other benefits.

3.  The applicant provides a 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, and 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’s record shows he was inducted into the Army of the United States on 29 April 1969 and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 11 August 1971, for being absent without leave (AWOL) during the period 16 through 26 July 1971.  It also shows he accrued 446 days of time lost during three separate periods of AWOL between 
28 September 1969 and 14 November 1971.  

4.  A complete separation packet containing all the facts and circumstances surrounding the applicant’s separation processing are not in the available record. 

5.  His DD Form 214 confirms he was discharged on 14 January 1972, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for the good of the service in lieu of trial by court-martial, with an Undesirable Discharge Certificate.  It further shows, at the time of discharge, he held the rank/grade of private/E-1, and he had completed a total of 1 year, 5 months, and 25 days of creditable active military service with 446 days of lost time.

6.  The applicant applied to the Army Discharge Review Board for an upgrade of his discharge and was denied.

7.  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 discharge or GD is authorized, a discharge under other than honorable conditions is normally considered appropriate.  However, at the time the applicant was discharged an undesirable discharge was considered appropriate 

8.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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 that his discharge should be upgraded to a GD so he can obtain benefits was carefully considered.  However, there is insufficient evidence to support his claim.

2.  The available evidence does not include his separation packet, but it includes a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, government regularity in the discharge process is presumed. 

3.  The applicant’s DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In connection with such a discharge, he would have been charged with the commission of an offense punishable with a punitive discharge under the UCMJ. Procedurally, he would have been required to consult with defense counsel and to voluntarily request a discharge from the Army in lieu of trial by court-martial.  In the absence of information to the contrary it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant’s record reveals a disciplinary history that includes his acceptance of NJP and his accrual of 446 days of lost time due to being AWOL.

5.  The undesirable discharge he received was normal and appropriate under the regulatory guidance in effect at the time and his overall record of undistinguished service was not sufficiently meritorious to support the separation authority issuing a GD at the time of discharge nor does it support an upgrade now.

6.  The ABCMR does not grant requests for upgrade of discharge solely for the purpose of making the applicant eligible for benefits.

7.  In view of the foregoing, there is insufficient evidence to grant 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)                                         AR20110021479



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ABCMR Record of Proceedings (cont)                                         AR20110021479



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