IN THE CASE OF:	  

		BOARD DATE:	  29 May 2012

		DOCKET NUMBER:  AR20110023475 


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 his undesirable discharge (UD) be upgraded.

2.  The applicant states his discharge was by his own admission.

3.  The applicant provides:

* a letter from the Army Review Boards Agency Congressional and Special Actions and his response
* a photograph presumed to be of him

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 military records show he enlisted in the Regular Army in pay grade E-1 on 22 February 1971 for 3 years.  He completed training and was awarded military occupational specialty 76S (Automotive Repair Parts Specialist).  He was advanced to pay grade E-4 on 14 July 1971.

3.  On 15 November 1973, a DD Form 458 (Charge Sheet) was prepared by the Commander, U.S. Army Personnel Control Facility, U.S. Army Training Center, Fort Dix, NJ.  The applicant was charged with one specification each of being absent without leave (AWOL) from:

* 23 February 1972 to 20 June 1973
* 4 October to 10 October 1973
* 5 November to 13 November 1973

4.  On 21 November 1973 after consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged under other than honorable conditions and furnished an UD Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected not to submit a statement in his own behalf.

5.  On 6 December 1973, the appropriate authority approved the applicant's request for discharge for the good of the service and directed issuance of a UD Certificate and his reduction to pay grade E-1.

6.  He was discharged in pay grade E-1 on 2 January 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial and issued a UD.  He was credited with completing 1 year and 6 months of active service and 497 days of lost time.

7.  On 11 December 1984, the Army Discharge Review Board denied his request for an upgrade of his discharge.

8.  Army Regulation 635-200 sets forth the basic authority for 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 UD was normally considered appropriate at the time.  The separation authority could direct a general discharge if such a discharge were merited by the Soldier's overall record.

9.  Army Regulation 635-200, paragraph 3-7a, states an honorable discharge is a separation with honor.  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 inappropriate.

10.  Army Regulation 635-200, paragraph 3-7b, states 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.  He departed AWOL on three occasions and was subsequently charged with 497 days of lost time.  Upon receipt of the charges he voluntarily requested discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  He also acknowledged that he understood he could be furnished a UD.

2.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting an honorable or a general discharge.

3.  It appears that his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.


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)                                         AR20110023475



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ABCMR Record of Proceedings (cont)                                         AR20110023475



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