BOARD DATE:	  14 June 2012

		DOCKET NUMBER:  AR20120000347 


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 upgrade of his undesirable discharge.

2.  The applicant did not provide any statement in support of his request.

3.  The applicant provides:

* A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 26 January 1970
* A DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 13 February 1972
* eight third-party statements

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.  Records show the applicant enlisted in the Regular Army on 14 May 1969 for a period of 3 years.  Upon completion of initial entry training he was awarded military occupational specialty 11B (Light Weapons Infantryman).  On 25 January 1970, he was honorably discharged for the purpose of immediate reenlistment.  On 26 January 1970, he reenlisted for a period of 3 years.

3.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date of Expiration of Term of Service (ETS)) of his DA Form 20 (Enlisted Qualification Record) shows he accrued 171 days of time lost as follows:

FROM
TO (Inclusive)
DAYS
REASON
20 Mar 70
27 Apr 70
30
Absent without leave (AWOL)
28 Apr 70
10 May 70
13
Dropped from the Army rolls (DFR)
2 Feb 71
2 Feb 71
1
AWOL
3 Feb 71
29 Apr 71
86
DFR
30 Apr 71
9 Jun 71
41
Confinement
4.  On 11 June 1971, he was found guilty, in accordance with his pleas, by a special court-martial of two specifications of AWOL.

5.  On 22 January 1972, court-martial charges were preferred against him for the following offenses on 20 January 1972:

	a.  Wrongfully communicating to a platoon sergeant a threat to kill him.

	b.  Disobeying a lawful order from a superior noncommissioned officer.

	c.  Disobeying a lawful order from a superior commissioned officer.

	d.  Assaulting a platoon sergeant by hitting him with thrown rocks.

6.  His record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, his record contains a DD Form 214 that shows he was discharged on 13 February 1972 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, with an under other than honorable conditions discharge and

171 days of time lost.  He completed a total of 2 years, 3 months, and 9 days of creditable active service.

7.  The applicant provides eight third-party statements of support that essentially attest to his positive post-service character and conduct.

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

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

	a.  Chapter 10, 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 under other than honorable conditions discharge 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.  The applicant's request for a discharge upgrade has been carefully considered.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offenses punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Discharges under the provisions of Army Regulation
635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service during his second enlistment.

3.  His record of indiscipline includes a court-martial conviction and 171 days of time lost.  Based on this record of indiscipline and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or a general discharge at the time of his discharge and does not support an upgrade of his discharge now.

4.  The statements of support were noted; however, the statements failed to show that his discharge was in error or unjust.

5.  In view of the foregoing, there is no basis for granting the applicant's request for a discharge upgrade 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)                                         AR20120000347



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ABCMR Record of Proceedings (cont)                                         AR20120000347



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