BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20110021989 


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 discharge to a general discharge (GD).

2.  The applicant states he was at the time having personal and family problems including death, money, and marriage.  He further states he was not in his right mind when offered the undesirable discharge.

3.  The applicant provides a three-page self-authored statement in support of his application. 

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 (RA) on 24 June 1969.  He completed his initial training and was awarded military occupational specialty (MOS) 76A (Supply Clerk).  

3.  On 13 July 1972, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for three specifications of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being absent without leave (AWOL) during the following periods:

* 2 December 1970 – 12 January 1971
* 23 October 1971 – 1 December 1971
* 24 March 1972 – 22 June 1972

4.  The applicant’s disciplinary history includes his accrual of 193 days of time lost during four separate additional periods of being AWOL during the following dates:

* 30 April 1970 - 26 May 1970
* 17 October 1970 - 26 October 1970
* 29 May 1971 - 3 June 1971
* 3 August 1971 - 20 August 1971

5.  A DA Form 188 (Extract Copy of Morning Report) shows the following:

* On 23 June 1972, he was Dropped from the Rolls of the Army
* On 4 July 1972, he was returned to military control

6.  On 14 July 1972, the applicant consulted with counsel and after being advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment, 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.

7.  On 25 July 1972, the separation authority approved the applicant’s request for discharge and directed he receive an Undesirable Discharge Certificate.  On 
1 August 1972, the applicant was discharged accordingly.

8.  The DD Form 214 confirms he was discharged on 1 August 1972, under the provisions of chapter 10, Army Regulation 635-200, 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 2 year, 7 months, and 7 days of creditable active military service with 193 days of lost time.
9.  The applicant provided a self-authored statement wherein he stated that he had family problems, his baby girl died from Sudden Death Syndrome in 1971, and his wife blamed herself for the incident; he went home for the funeral and was AWOL for 90 days.  He asked for a hardship discharge and was denied and was offered a court-martial or chapter 10.  The applicant further states he was young and did not know the right thing to do.

10.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations. 

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

12.  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 to upgrade his discharge to GD was carefully considered.  However, it was determined that there is insufficient evidence to support this request.

2.  The evidence of record further confirms the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge.  His record reveals a disciplinary record that includes his accrual of 193 days of lost time due to being AWOL.

3.  Based on the applicant's undistinguished short period of service and his extensive misconduct, the undesirable discharge he received was normal and appropriate under the regulatory guidance in effect at the time.  Therefore, there is an insufficient evidentiary basis for granting his 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)                                         AR20110021989



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ABCMR Record of Proceedings (cont)                                         AR20110021989



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