IN THE CASE OF:	  

		BOARD DATE:	    22 May 2012

		DOCKET NUMBER:  AR20120000036 


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, in effect, that his discharge be upgraded to a general or honorable discharge (HD).

2.  The applicant states that no one checked his state of mind after a propane explosion that badly burned his wife to be.  He also states, in effect, he should have been examined and medication should have been prescribed.  Additionally, he states, the Department of Veterans Affairs (VA) will not help him in any way with his present separation status.

3.  The applicant provides a one-page self-authored letter, a letter from his pastor, and a copy of his DD Form 214 (Report of Separation from Active Duty).

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 13 January 1976.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Field Artillery Crewman).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  Records show that the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates:

   a.  28 June 1976, for being absent without leave (AWOL) during the period 21 June 1976 through 23 June 1976;
   
b. 30 August 1976, for failing to go to his appointed place of duty; and

c. 23 July 1977, for failing to go to his appointed place of duty.

4.  The facts and circumstances of the applicant's AWOL status on three separate occasions are not available for review with this case.  However, his record contains a duly-constituted DD Form 214 that shows he was AWOL on the following dates:

* 11 October 1976 through 11 October 1976
* 22 October 1976 through 1 November 1976
* 1 September 1977 through 1 September 1976

5.  On 25 August 1977, an investigation was initiated upon receipt of information from the Chief of Patient and Administration from the local Army hospital.  The applicant was accused of committing fraud by claiming a patient at the hospital was his legal wife when there was no record of a marriage.

6.  On 18 October 1977, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an Under Other Than Honorable Conditions (UOTHC) discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.



7.  In his request for discharge, the applicant indicated he understood that by requesting a discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  On 31 October 1977, the separation authority approved the applicant’s request for discharge and directed that he receive a UOTHC discharge.  On 
4 November 1977, under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations), the applicant was discharged accordingly.

9.  The DD Form 214 he was issued confirms he completed 1 year, 9 months, and 6 days of total creditable active military service with 15 days of lost time.

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  The applicant provided a one-page self-authored which essentially explained he requests an upgrade of his discharge.  He states he talked to a VA representative and they cannot help him with his type of discharge.  The applicant continues to explain, in effect, that his wife to be was involved in a fire while they were living off-post.  He also states, in effect, she was burned very badly, which further led him to turn to alcoholism.  He later explained he tried to reenlist after 9/11; however, he was too old.

12.  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 at any time after the charges have been preferred.  A discharge UOTHC is normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge (GD) 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge be upgraded to a general or HD was carefully considered.  However, it was determined that there is insufficient evidence to support this request.

2.  During the period of service under review the applicant was punished on several occasions for acts of indiscipline and his DD Form 214 lists repeated acts of AWOL.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

4.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, which includes 15 days of AWOL, 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 a GD or HD.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for benefits.

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)                                         AR20120000036





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ABCMR Record of Proceedings (cont)                                         AR20120000036



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