IN THE CASE OF:	  

		BOARD DATE:	  24 May 2012

		DOCKET NUMBER:  AR20110023271 


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 under other than honorable conditions.

2.  The applicant states:

* he made mistakes when he was young
* he takes full responsibility for his actions
* he just wants to make or get things right

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty).

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's records show he was born on 10 March 1954 and enlisted in the Regular Army on 29 January 1974 at nearly 20 years of age.  He held military occupational specialty 11E (Armor Crewman).

3.  He was awarded or authorized the National Defense Service Medal and Marksman Marksmanship Qualification Badge with Missile Bar.

4.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 17 December 1975 for disobeying a lawful order.

5.  On 5 July 1976, he departed his Fort Hood, TX, unit on ordinary leave.  However, he did not return.  On 20 July 1976, he was reported as absent without leave (AWOL) and he was dropped from Army rolls as a deserter on 19 August 1976.  He surrendered to Federal authorities and returned to military control on 27 September 1976.

6.  The complete facts and circumstances of the applicant's discharge processing are not available for review with this case.  However, his record contains:

	a.  Orders 87-654 issued by Headquarters, 101st Airborne Division, Fort Campbell, KY, on 4 November 1976 ordering him to report to the U.S. Army Transfer Point for separation effective 17 November 1976;

	b.  Orders 94-279 issued by Headquarters, 101st Airborne Division, Fort Campbell, KY, on 15 November 1976 discharging him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, effective 17 November 1976 with an undesirable discharge; and

	c.  a duly-constituted DD Form 214 that shows he was discharged on 17 November 1976 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an Undesirable Discharge Certificate.  This form also shows he completed 2 years, 7 months, and 11 days of creditable active service and he had 69 days of lost time.

7.  There is no indication in his records he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations.

8.  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 or general discharge is authorized, an under other than honorable conditions discharge was considered appropriate at the time the applicant was discharged.

9.  Army Regulation 635-200, 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.

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 record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged under other than honorable conditions on 17 November 1976 under the provisions of chapter 10 of Army Regulation 
635-200 in lieu of trial by court-martial.

2.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army 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 that the applicant's discharge accurately reflects his overall record of service.

3.  The applicant was nearly 20 years of age at the time he enlisted and over 21 years of age when he was dropped from Army rolls as a deserter.  However, there is no evidence his extensive history of AWOL was due to his age or that he was any less mature than other Soldiers who successfully completed their terms of service.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  In view of the foregoing, he is not entitled to an honorable or a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20110023271



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ABCMR Record of Proceedings (cont)                                         AR20110023271



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