IN THE CASE OF:	  

		BOARD DATE:  15 May 2012

		DOCKET NUMBER:  AR20120000076 


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 discharge be upgraded to a General Discharge (GD), under honorable conditions.

2.  The applicant states he now realizes he made some mistakes when he was young, but has now changed his life.  He is now clean and sober.

3.  The applicant provides:

* A copy of his DD Form 214 (Report of Separation from Active Duty)
* Four letters of reference
* A Certificate of Completion, dated 12 October 2011
* A letter from the Yuba-Sutter County Veterans Service Office forwarding the supporting documents, dated 30 November 2011

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 22 September 1972, 2 days short of his 18th birthday.  He completed basic combat and advanced individual training and was awarded military occupational specialty 94B (Cook).  The highest rank/grade he attained while serving on active duty was private first class/E- 3. 

3.  The applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for the offenses indicated:

	a.  on 12 January 1973, for being absent without leave (AWOL); and

   b.  on 6 August 1973, for failing to go to his appointed place of duty.

4.  On 8 November 1973, court-martial charges were preferred against the applicant for two specifications of violating Article 86 of the UCMJ, for being AWOL for the periods 3 September 1973 through 28 September 1973, and         11 October 1973 through 4 November 1973.

5.  On 9 November 1973, the applicant consulted with legal counsel and he 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 undesirable discharge, and of the procedures and rights that were available to him.

6.  Following counseling, the applicant submitted a voluntary written request for 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.  

7.  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He submitted a statement in his own behalf indicating his personal assessment of his rehabilitation potential was “I wouldn’t even make it as a Soldier in the U.S. Army.”
8.  On 23 November 1973, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the applicant's reduction to the lowest enlisted grade and issuance of an Undesirable Discharge.

9.  On 14 December 1973, the applicant was discharged accordingly.  His DD Form 214 shows he completed a total of 1 year and 25 days of creditable active military service with 58 days of lost time.

10.  The applicant provides a four character statements indicating how he has cleaned up his life through participation in drug and alcohol rehabilitation programs.  He also provides a certificate of completion showing he successfully completed ICDTP Substance Abuse Treatment and Recovery Program.

11.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

13.  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.

14.  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 request for an upgrade of his discharge and his supporting character statements were carefully considered, but the statements were found not to be sufficiently mitigating to upgrade his discharge.

2.  Although the applicant was 18 years of age at the time of his AWOLs,  there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  There is no evidence in his record and he has not provided any evidence to show he sought assistance from his chain of command for his personal and family issues.

4.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10 to avoid a trial by court-martial which may have resulted in a felony conviction.

5.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20120000076





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ABCMR Record of Proceedings (cont)                                         AR20120000076



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