IN THE CASE OF:	  

		BOARD DATE:  24 July 2012

		DOCKET NUMBER:  AR20120000604 


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 undesirable discharge to a general discharge.

2.  The applicant states his discharge was due to his use of drugs and alcohol and he was not in his right mind.  It has been more than 35 years since his discharge and he is a changed man.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) and two letters of support.

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 enlisted in the Regular Army on 19 October 1973 for a period of 3 years.  He was awarded military occupational specialty 94B (Food Service Specialist).

3.  The applicant received nonjudicial punishment under the provisions of
Article 15, Uniform Code of Military justice (UCMJ) for being absent without leave (AWOL) from 6 to 11 January 1974 and from 6 March to 11 April 1974.

4.  Court-martial charges were preferred against the applicant for being AWOL from 3 September 1974 to 4 June 1975.

5.  The applicant consulted with legal counsel and he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	a.  He was advised that he might be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an Undesirable Discharge Certificate.

	b.  He was also advised that he could submit any statements he desired in his own behalf.  The applicant submitted a statement with his request wherein he indicated he was required to perform duties others did not want to do.  He got tired of performing the duties and asked his superiors several times to be relieved of the duties, but without any success.  As a result, he went AWOL.

	c.  The applicant and his counsel placed their signatures on the document.

6.  The applicant's commander recommended approval of the request for discharge with an Undesirable Discharge Certificate.

7.  The separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate.

8.  The applicant's DD Form 214 shows he was discharged on 25 June 1975 in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an Undesirable Discharge Certificate.

	a.  He completed 11 months and 5 days of total active service.

	b.  He had 275 days of time lost under Title 10, U.S. Code, section 972.

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

10.  In support of his application, the applicant provides two letters of support.

	a.  A letter from Mr. Billy D. L----, B.D. L---- and Associates, Sand Springs, OK, dated 20 August 2009, wherein Mr. L---- states the applicant was employed as a contract laborer with the company from 1997 until his recent health problems.  During the period of his employment, the applicant demonstrated exceptional leadership as a lead man, job foreman, and project superintendent.  Mr. L---- adds the applicant is involved in the community with local youth programs and he endorses the applicant's effort to upgrade his discharge.

	b.  A letter from George M. T---, Chief Medical Officer, KLM Medical Associates, Tulsa, OK, dated 6 October 2009, wherein Doctor T---- states the applicant has been a patient of his for the past 16 months.  He has observed the applicant's ever-increasing maturity, secondary to self-analysis and reflection on his life.  He adds the applicant has expressed a desire to address his early-life difficulties and he requests a review of matters pertaining to the applicant's discharge.

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

	a.  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 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 3-7a 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.

	c.  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.  Records show the applicant was charged with being AWOL from 3 September 1974 through 4 June 1975.

2.  The applicant's 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 voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the characterization of service was appropriate and equitable.

3.  The applicant elected to request discharge in lieu of trial by court-martial, he had 275 days of time lost (i.e., 9 months and 5 days), and he completed less than one-third of his 3-year enlistment obligation.  Therefore, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to a general discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20120000604



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ABCMR Record of Proceedings (cont)                                         AR20120000604



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