IN THE CASE OF:	  

		BOARD DATE:	  24 May 2012

		DOCKET NUMBER:  AR20110024200 


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 that his undesirable discharge be upgraded to general, under honorable conditions.

2.  The applicant states he feels that he has been punished all his life and he would feel better if his discharge is upgraded.  He was young at the time and made bad decisions.  

3.  The applicant provides a DD Form 214 (Report of Separation from Active Duty) and a letter from the Department of Veterans Affairs (VA).

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 was born on 20 July 1952.  He enlisted in the Army National Guard (ARNG) on 28 September 1972.  

3.  In a statement dated 10 October 1973, his unit commander indicated that the applicant was notified to report for initial active duty for training at Fort Ord, CA.  However, it appears the applicant did not report to Fort Ord as ordered.

4.  On 20 November 1973, he was reported as an unsatisfactory participant by his ARNG unit commander.  As a result, on 13 February 1974, he was involuntarily ordered to active for a period of 24 months with a report date of 
29 March 1974.  However, he did not report as ordered and was placed in an absent without leave (AWOL) status.  

5.  He returned to military control on 19 November 1974.  He again departed AWOL on 9 December 1974.  On 20 March 1975, he was apprehended by civil authorities and returned to military control.

6.  He again departed AWOL on 21 March 1975 and returned to military control on 15 July 1975.

7.  On 29 July 1975, court-martial charges were preferred against him for the AWOL offenses.  

8.  On 1 August 1975, he consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, due to charges being preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

9.  He acknowledged that by requesting discharge, he was admitting guilt to the charge against him or to a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged he understood he could be issued a discharge under other than honorable conditions and he could be ineligible for many or all benefits administered by the VA, he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.  

10.  On 13 August 1975, the separation authority approved his request for discharge and directed issuance of an Undesirable Discharge Certificate.  On 
29 August 1975, he was discharged accordingly.  His DD Form 214 shows he served 2 months and 8 days of creditable active duty service and accrued 466 days of lost time.

11.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.

12.  He provides a letter from the VA which shows his service dates.

13.  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 VA 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.

14.  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 for a discharge upgrade has been carefully considered.  

2.  The evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request he admitted guilt to the charges that also authorized the imposition of a bad conduct or dishonorable discharge.

3.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was 


administratively correct and in conformance with applicable regulations.  There is no indication the request was made under coercion or duress.

4.  His record of indiscipline includes 466 days of lost time.  Based on this record of indiscipline and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of a general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  He contends that he was young at the time and made bad decisions; however, he was age 20 at the time of enlistment in the ARNG and there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military obligations.  

6.  In view of the foregoing, there is no basis for granting the 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)                                         AR20110024200



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ABCMR Record of Proceedings (cont)                                         AR20110024200



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