IN THE CASE OF:	  

		BOARD DATE:	  21 June 2012

		DOCKET NUMBER:  AR20110025182 


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 he was supposed to file with the courthouse and if he did not get into trouble his discharge would be upgraded.  He did not do that because he was young and did not think it made a difference.  When he was drafted, he was married with a daughter but he was separated.  

3.  The applicant 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.  The applicant's records show he was born on 16 December 1948.  He was inducted into the Army of the United States (AUS) at 17 years and 6 months of age, on 7 June 1971, and he held military occupational specialty 11H (Infantry Direct Fire Crewman). 

3.  He served in Germany from 15 December 1971 to 12 April 1972.  He was awarded the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  On 14 March 1972, he departed his unit in Germany in an absent without leave (AWOL) status and on 15 April 1972, he was dropped from Army rolls as a deserter.  He ultimately surrendered to military authorities at Fort Jackson, SC, on 29 November 1972. 

5.  On 29 November 1972, his command preferred court-martial charges against him for one specification of being AWOL from 14 March to 29 November 1972.

6.  On 29 November 1972, the applicant consulted with legal counsel who advised him 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 that were 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).

7.  In his request for discharge, he acknowledged he understood that if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could deprived of his rights and benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.  He elected not to submit a statement.

8.  On 30 November and 4 December 1972, his intermediate and senior commanders recommended approval with the issuance of an Undesirable Discharge Certificate.  

9.  On 6 December 1972, consistent with the applicant's chain of command's recommendations, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, directed that he be reduced to the lowest enlisted grade, and issued an Undesirable Discharge Certificate.  

10.  On 7 December 1972, his commander initiated a Bar to Reenlistment Certificate against the applicant citing his misconduct as the basis for the bar.  The applicant was provided a copy of the bar and he elected not to submit a statement on his own behalf.  His bar was ultimately approved by the approval authority.

11.  On 8 December 1972, the applicant was discharged.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by a court-martial with an undesirable discharge.  He completed 8 months and 12 days of creditable active military service and he had lost time from 14 March to 28 November 1972.

12.  There is no indication in his records he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

13.  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, an undesirable discharge was normally considered appropriate at the time the applicant was discharged.

14.  Army Regulation 635-200, paragraph 3-7a, provides 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.

15.  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 records show he 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.  

2.  The applicant voluntarily, willingly, and in writing requested a 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.  The applicant was 17 years and 6 months of age at the time of induction into the AUS and 18 years of age at the time he went AWOL.  However, there is no evidence his misconduct was a result of his age or that he was any less mature than other Soldiers who successfully completed their military service obligation.

4.  There is nothing in the applicant's record and he has provided nothing to show he was told his discharge would be upgraded if he filed anything with a courthouse.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders 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)                                         AR20110025182



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ABCMR Record of Proceedings (cont)                                         AR20110025182



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