IN THE CASE OF:	 

		BOARD DATE:	  29 May 2012

		DOCKET NUMBER:  AR20110024070 


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 be upgraded to an honorable discharge.

2.  The applicant states that he was honorably discharged on 31 December 1971 and reenlisted on 9 March 1972.  He was discharged under other than honorable conditions on 6 April 1973.  Since he served honorably from 22 June 1970 to 31 December 1971, he would like an honorable discharge for the period 9 March 1972 to 6 April 1973 

3.  The applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 was inducted into the Army of the United States on 22 June 1970.  He completed training and was awarded military occupational specialty (MOS) 52B (Power Generation Equipment Operator).  He served in the U.S. Army Pacific from November 1970 to December 1971.  

3.  He was honorably released from active duty in pay grade E-4 on 31 December 1971 and was transferred to U.S. Army Reserve Control Group (Annual Training).  He was credited with completing 1 year, 6 months, and 10 days of active service.

4.  He enlisted in the Regular Army for 3 years on 9 March 1972.  

5.  On 7 June 1972, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty on 6 June 1972.

6.  On 12 July 1972, he departed his unit in an absent without leave (AWOL) status and on 16 August 1972, he was dropped from the rolls of the Army a deserter.  He returned to military control on 19 September 1972.

7.  On 21 September 1972, he again departed his unit in an AWOL status and on 28 September 1972, he was dropped from the rolls as a deserter.  He returned to military control on or about 12 December 1972.

8.  Subsequent to his return to military control, his command preferred court-martial charges against him for two specifications of AWOL from 12 July 1972 to 19 September 1972 and from 21 September to 12 December 1972.

9.  On 29 January 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 Undesirable Discharge Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that 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.  

10.  On 21 March 1973, the Commander, U.S. Army Training Center and Fort Gordon, Fort Gordon, GA, recommended disapproval of the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 and recommended trial by special court-martial.
11.  On 23 March 1973, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that an Undesirable Discharge Certificate be issued and that the applicant be reduced to pay grade E-1.

12.  The applicant was discharged in pay grade E-1 on 6 April 1973 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 an Undesirable Discharge Certificate.  He was credited with completing 7 months and 23 days of active service with 155 days of time lost during the period under review.

13.  There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 provided that a member who had 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 in lieu of trial by court-martial at any time after the charges have been preferred.  An undesirable discharge was normally considered appropriate. The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

15.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

16.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted; however, during his second enlistment, he accrued 155 days of time lost.  Upon his return to military control in December 1972, 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 he understood he could be furnished an Undesirable Discharge Certificate.  

2.  The applicant was charged with the commission of an offense 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 voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  

3.  His commander considered his offenses so serious that he recommended disapproval of the discharge request and recommended trial by special court-martial.  The separation authority approved the applicant's request for discharge for the good of the service and directed the issuance of an Undesirable Discharge Certificate and the applicant be reduced to pay grade E-1.  The applicant was discharged accordingly on 6 April 1973.

4.  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 a general or fully honorable discharge.

5.  Without evidence, it appears 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.

6.  The evidence of record confirms his discharge processing was accomplished in accordance with applicable regulations and the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  Therefore, there is no basis for granting his request.

7.  His desire to have his discharge upgraded is acknowledged; however, the 
type of discharge an individual receives is not changed based on having received an honorable discharge from a prior enlistment.

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)                                         AR20110024070





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ABCMR Record of Proceedings (cont)                                         AR20110024070



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