BOARD DATE:	  26 April 2012

		DOCKET NUMBER:  AR20110021715 


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 an upgrade of his discharge to a general discharge (GD).

2.  The applicant states his record needs to be adjusted so that he can receive his health benefits and veteran status.

3.  The applicant did not provide any additional evidence.

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 21 July 1972.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was private/E-1.

3.  On 14 December 1972, he departed his unit in an absent without leave (AWOL) status and he was dropped from the Army rolls as a deserter on an unconfirmed date.  On 25 January 1973, he surrendered to military authorities at Oakland Army Base, Oakland, California.

4.  On 7 February 1973, the applicant was convicted by a summary court-martial of being AWOL.

5.  On 13 July 1973, the applicant was convicted by a summary court-martial of being disrespectful in language toward his superior noncommissioned officer (NCO), assault against his NCO, and for failure to display proper license plates on his privately owned vehicle.

6.  On 31 July 1973, he departed his unit in an AWOL status and was dropped from the Army rolls as a deserter on 1 August 1973.  On 31 August 1973, he surrendered to military authorities at Ft. Riley, Kansas.

7.  The facts and circumstances of the applicant's discharge are not available for review with this case.  However, his record contains a duly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 18 October 1973 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial with a character of service of under other than honorable conditions.  This form also shows he completed a total of 1 year and 14 days of creditable active service and he accrued 148 days of lost time.

8.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 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.  A discharge under other than honorable conditions (UOTHC) 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 request that his discharge be upgraded to a GD was carefully considered and it was determined that there is insufficient evidence to support this request.

2.  The applicant's record is void of the facts and circumstances that led to his discharge; however, the applicant was convicted by court-martial on two occasions.  Additionally, his record contains a DD Form 214 that shows he was discharged UOTHC in lieu of trial by court-martial on 18 October 1973 under the provisions of Army Regulation 635-200, chapter 10.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The applicant provided no information that would indicate the contrary.  Further, it is presumed the applicant's discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, which includes 148 days of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to the requested relief.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for employment or employment benefits.








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)                                         AR20110021715





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ABCMR Record of Proceedings (cont)                                         AR20110021715



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