BOARD DATE:	  21 June 2012

		DOCKET NUMBER:  AR20110025105 


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 to a general discharge and reinstatement of his rank/grade.

2.  The applicant states:

* He served honorably in the Army for 5 years and 4 months with high marks and no blemishes
* He was initially stationed in Korea and upon reenlistment he was reassigned to a remote unit in Korea; his wife was with him at the time
* Despite the complications in her pregnancy, doctors did nothing to alleviate her pain and suffering; the pregnancy was ultimately aborted
* He was then stationed in Germany but he was not authorized to take his wife with him at the time
* His wife was pregnant with complications and he was authorized 10 days of leave 
* He felt the Army was not supporting him and his family and the previous events began to haunt him; therefore, he decided not to return to his unit 
* He turned himself in and after a few days of incarceration, he was given an under other than honorable conditions discharge 
* He now has health issues that may have been caused by exposure to Agent Orange
* He also finds himself mentally depressed because of his health issues and the loss of his child


3.  The applicant provides:

* Medical statement from a physician
* Request for reassignment
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 9 October 1973
* DD Form 214 (Report of Separation from Active Duty) for the period ending 11 November 1976
* His wife's medical records

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 enlisted in the Regular Army (RA) on
12 March 1971 and held military occupational specialty 31M (Radio Relay and Carrier Operator).  He served in Korea from 21 September 1972 to 7 October 1974.  He was promoted to sergeant (SGT)/E-5 on 4 September 1974.  

3.  He was honorably discharged on 9 October 1973 for the purpose of immediate reenlistment in the RA.  He reenlisted in the RA on 10 October 1973.  

4.  He submitted two documents, dated 27 February and 18 April 1974, wherein he requested reassignment from the 1st Battalion, 44th Air Defense Artillery to a duty station in which adequate medical facilities were available.  He stated in the first request that his wife was pregnant and in need of medical care and in the second request that his wife had a miscarriage on 11 April 1974 and continued to need medical care. 

5.  It is unclear if he submitted the two requests through his chain of command or if his chain of command and/or the approval authority acted upon these requests. 


6.  He served at Fort Riley, KS, from November 1975 to March 1976 and he was subsequently reassigned to Germany on or about 27 April 1976.  

7.  On 10 June 1976, he departed his unit in an absent without leave (AWOL) status and on 9 July 1976, he was dropped from Army rolls as a deserter.  He ultimately surrendered to military authorities at Fort Riley, KS, on 22 September 1976.

8.  On 6 October 1976, court-martial charges were preferred against him for one specification of being AWOL from 10 June to 21 September 1976. 

9.  On 12 October 1976, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights available to him.  Following consultation with legal counsel he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

10.  In his request for discharge the applicant indicated he:

	a.  Was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.

	b.  Did not desire any further rehabilitation under any circumstances because he had no desire to perform further service.

	c.  Acknowledged he understood that by requesting a 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 discharge or a discharge under other honorable conditions.

	d.  Also acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws

11.  With his request for discharge he submitted a statement wherein he indicated the Army should have taken better care of his family medically at the time his wife had a miscarriage.
12.  On 18 and 19 October 1976, his immediate and intermediate commanders recommended approval of his request with the issuance of an under other than honorable conditions discharge.  

13.  Consistent with the applicant's entire chain of command's recommendations, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by a court-martial in accordance with chapter 10 of Army Regulation 635-200 and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On 11 November 1976, the applicant was accordingly discharged.

14.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by a court-martial in the rank/grade of private/E-1 with a character of service of under other than honorable conditions.  This form further shows he completed 2 years, 9 months, and 21 days of active service during this period of service with 104 days of lost time.  He also completed 2 year, 6 months, and 28 days of prior active service.

15.  He submitted:

	a.  A medical document, dated 22 June 2011, from a physician who states the applicant is a patient of his and that the applicant suffers with gastritis, chronic headaches, light headedness, and depression. 

	b.  Multiple medical documents related to the applicant's wife's pregnancy in 1973.

16.  The available evidence does not show the applicant was exposed to Agent Orange, or that he was assigned anywhere that he could have come in contact with Agent Orange.  

17.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-years statute of limitations.

18.  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, a discharge under other than honorable conditions is normally considered appropriate.

	a.  Paragraph 1-14 of the regulation in effect at the time stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade.

	b.  Paragraph 3-7a states 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.

	c.  Paragraph 3-7b states 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 contends his discharge should be upgraded and his rank/grade should be restored.

2.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 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.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  With respect to his rank/grade, when the separation authority approved the applicant's voluntary request for discharge in lieu of trial by court-martial he ordered the applicant's reduction to the lowest enlisted grade as required by regulation.  This grade is correctly shown on the applicant's DD Form 214 and there is no reason to change it.

4.  The applicant served overseas in Germany and Korea.  There is no evidence that he was exposed to Agent Orange or that he had any medical conditions at the time of discharge.  

5.  His wife's unfortunate medical situation at the time is noted.  However, there were many other ways to address the situation had he chosen to use them.  Additionally, the applicant had the option of demanding a trial by court-martial for his offense of AWOL if he believed he had extenuating circumstances related to his wife's medical condition. 

6.  The ABCMR does not correct records solely to entitle an applicant to certain programs or benefits.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or 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)                                         AR20110025105



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ABCMR Record of Proceedings (cont)                                         AR20110025105



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