IN THE CASE OF:	  

		BOARD DATE:	    24 May 2012

		DOCKET NUMBER:  AR20110024296 


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 under other than honorable conditions discharge to general under honorable conditions.

2.  He states he married while he was on leave and later found out his wife had married him to "get off probation."  One month after their marriage, his wife asked for a divorce.  Due to the emotional trauma in his personal life and "total lack of support from the Army," he "just ran away, hoping to save the marriage."  He turned himself in to make things right.  He was told he could reenlist for 6 years or receive a "bad discharge" that could be upgraded later.

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 27 April 1970, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 52B (Power Generation Equipment Operator/Mechanic).  His record shows he served in Vietnam from 11 October 1970 to 10 October 1971.  

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on the following dates for the following offenses:

* 25 January 1971 – failing to obey a lawful order
* 21 May 1971 – being absent from his designated post 
* 6 January 1972 – absent without leave (AWOL) from 30 November 1971 to 4 January 1972

4.  A DD Form 458 (Charge Sheet), dated 3 January 1973, shows he was charged with being AWOL from 6 May to 27 December 1972.  

5.  On 9 January 1973, he consulted with legal counsel, who advised him of the basis for his contemplated trial by court-martial, the maximum punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of his rights.  

6.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He indicated he understood if his request was accepted he could be discharged under other than honorable conditions.  He further indicated he understood that as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, be ineligible for many or all benefits administered by the Veterans Administration, be deprived of his rights and benefits as a veteran under both Federal and State laws, and encounter substantial prejudice in civilian life.  He elected not to submit a statement in his own behalf.

7.  On 20 January 1973, the separation authority approved his request and directed that he be furnished an Undesirable Discharge Certificate.  On 13 February 1973, he was discharged accordingly.  

8.  His DD Form 214 shows he completed 2 years, 1 month, and 26 days of total active service, with 235 days of lost time.  His service was characterized as under conditions other than honorable.
9.  His record shows no acts of valor, significant achievement or service warranting special recognition.  

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for upgrade of his discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  He elected not to submit a statement in his own behalf describing any mitigating circumstances he wanted the separation authority to consider in making a decision on his request.  The record shows all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

3.  He received NJP on three occasions, and he was AWOL for over 200 days.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general discharge.

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)                                         AR20110024296





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ABCMR Record of Proceedings (cont)                                         AR20110024296



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