IN THE CASE OF:	  

		BOARD DATE:	  17 May 2012

		DOCKET NUMBER:  AR20110022754 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states he was told his discharge would be under honorable conditions.

3.  The applicant provides no additional documentation.

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.  On 10 March 1971, the applicant was inducted into the Army of the United States.  He completed his initial training and he was awarded military occupational specialty 76A (Supplyman).  He was subsequently assigned for duty at Fort Carson, CO.

3.  On 17 August 1971, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from on or about 6 July 1971 to on or about 19 July 1971 (14 days).

4.  The applicant accepted nonjudicial punishment under the provisions of
Article 15, Uniform Code of Military Justice (UCMJ) on:

	a.  2 November 1972, for being disrespectful in language towards a noncommissioned officer; and

	b.  7 November 1972, for stealing property belonging to another Soldier valued at about $133.00.

5.  On 22 March 1973, the applicant was convicted by a special court-martial of being AWOL from on or about 12 January 1973 to on or about 14 February 1973 (34 days).

6.  His DA Form 20 (Enlisted Qualification Record) shows in Item 44 (Time Lost) that he was AWOL for a period of 195 days from 30 May to 10 December 1973
(34 days).

7.  The applicant's discharge packet is missing from his military records.  However, his record contains a DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 14 January 1974 under the provisions of Army Regulation 600-200 (Personnel Separations – Enlisted Personnel),
chapter 10, for the good of the service – in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions with issuance of an Undesirable Discharge Certificate.  It further shows he completed 2 years, 2 months, and 1 day of total active duty service with 249 days of time lost.

8.  There is no indication the applicant 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 governs the policies and procedures for the separation of enlisted personnel.  It states:

	a.  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.  

	b.  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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 provides that the Board 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 applicant contends that his undesirable discharge should be upgraded to a general discharge.  He has offered no documentary evidence or convincing argument to support his desire to upgrade the characterization of his military service

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

3.  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)                                         AR20110022754



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ABCMR Record of Proceedings (cont)                                         AR20110022754



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