IN THE CASE OF:
BOARD DATE: 17 May 2012
DOCKET NUMBER: AR20110021780
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 undesirable discharge.
2. The applicant states his discharge was too harsh.
3. The applicant provides no 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 30 July 1971 for a period of 2 years. He was awarded military occupational specialty 76A (Supplyman).
3. The applicant's DA Form 20 (Enlisted Qualification Record), item 44 (Time Lost Under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date of Expiration of Term of Service) shows he was absent without leave (AWOL) for 20 days from 3 March to 22 March 1972.
4. On 23 August 1972, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, with the specification of absenting himself from his organization from 31 March until 17 August 1972.
5. A U.S. Army Personnel Control Facility, Fort George G. Meade, Maryland, letter shows the commander notified the applicant's spouse that the applicant was in an AWOL status since 18 August 1972.
6. U.S. Army Personnel Control Facility, Fort George G. Meade, Maryland, Special Orders Number 198, dated 11 October 1972, show the applicant returned to military control from an AWOL status on 5 October 1972.
7. The applicant's military personnel records do not contain a DD Form 458 (Charge Sheet) relating to the period of AWOL from 18 August to 5 October 1972. However, his records contain a Transmittal of Court-Martial Charges, dated 11 October 1972, listing the DD Form 458 as an enclosure.
8. On 16 October 1972, the applicant consulted with legal counsel and he voluntarily requested 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. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.
a. He was advised that he might be discharged under other than honorable conditions, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life if he were issued an Undesirable Discharge Certificate.
b. He was also advised that he could submit any statements he desired in his own behalf. The applicant elected not to submit any statements with his request.
c. The applicant and his counsel placed their signatures on the document.
9. The applicant's military personnel records do not contain a copy of the separation authority's approval document.
10. Headquarters, Fort George G. Meade, Maryland, Special Orders Number 210, dated 20 October 1972, discharged the applicant under conditions other than honorable for the good of the service effective 2 November 1972 under the provisions of Army Regulation 635-200, chapter 10.
11. The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 2 November 1972 in accordance with Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial and issued an Undesirable Discharge Certificate.
a. He completed 8 months and 4 days of active service during this period.
b. He had 209 days of lost time under Title 10, U.S. Code, section 972, as follows:
* 3 through 22 March 1972
* 31 March through 16 August 1972
* 17 August 1972
* 18 August through 4 October 1972
12. There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
13. Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.
a. Chapter 3, 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.
b. Chapter 3, 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.
c. Chapter 10 provides that a member who 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, an undesirable discharge was considered appropriate at the time.
14. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant elected to request discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial. In addition, he had 209 days of lost time and he completed only 8 months of his 24-month enlistment obligation.
2. The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption. Therefore, considering all the facts of this case and in the absence of evidence to the contrary, the type of discharge and narrative reason directed appear to have been appropriate.
3. Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or a general discharge.
4. Therefore, there is no basis for granting the 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 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) AR20110021780
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20110021780
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