IN THE CASE OF:	  

		BOARD DATE:  5 July 2012

		DOCKET NUMBER:  AR20120001234 


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 discharge under conditions other than honorable to an honorable or general discharge.  He also requests, in effect, correction of the number of days lost shown on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and correction of a list of duty stations incorrectly showing he was stationed in Hawaii.

2.  He states when he entered service in July 1971 he was only 17 years of age and had never been away from home.  He had a 7th grade education, and he was accepted [for service] even though he had "never passed the written entrance exam."  He volunteered for the draft, and he was obligated to serve on active duty for 2 years.  While he was stationed at Fort Belvoir, VA, his company commander asked if anyone wanted to volunteer for an "early out."  He states about 700 Soldiers volunteered that day, and they were not told their discharges would be anything other than honorable.  Had he known his discharge would be anything but honorable, he would not have volunteered.

3.  He states he has a problem with the number of days lost shown on his DD Form 214.  He was not absent without leave (AWOL) for the amount of time shown.  He was never absent for more than 7 days except for the 22 or 23 days he was "in the brig."  He states he was late coming back from trips home a few times, one of those times being when he went home for his grandfather's funeral and missed a flight on his return trip.  He states he has no idea where the 298 days lost [shown on his DD Form 214] came from.  

4.  Finally, he states his list of duty stations shows he was stationed in Hawaii.  He has never been to Hawaii, and the only duty stations he had were Fort Dix, NJ; Fort Leonard Wood, MO; and Fort Belvoir, VA.  

5.  He provides his DD Form 214.

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.  On 9 July 1971, the applicant enlisted in the Regular Army for a period of 2 years.  His record shows he was 17 years of age at the time, and his father consented to his enlistment.  

3.  After completing initial entry training at Fort Dix, NJ, he was awarded military occupational specialty 36K (Field Wireman).  

4.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on two occasions while he was assigned to Fort Dix, NJ:

* on 27 July 1971, for being AWOL from 19 to 27 July 1971
* on 9 December 1971, for being AWOL from 6 to 8 December 1971

5.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows that subsequent to completing initial entry training his assignments were as follows:

* 17 December 1971 – casual status en route to Fort Leonard Wood, MO
* 3 January 1972 – AWOL from Headquarters, U.S. Army Training Center, Fort Dix, NJ
* 3 August 1972 – casual status assigned to the Casual Company, U.S. Army Personnel Control Facility (USA PCF), Fort Belvoir, VA
* 14 August 1972 – AWOL from the USA PCF, Fort Belvoir, VA
* 15 September 1972 – dropped from the rolls for desertion
* 28 October 1972 – casual status assigned to the USA PCF, Fort Belvoir, VA

6.  Item 42 (Remarks) of his DA Form 20 shows the entries "[continental United States (CONUS)] – N.C." and "[overseas] – Hawaii." 

7.  Item 44 (Time Lost under Section 972, Title 10, United States Code) of his DA Form 20 shows the following periods of time lost due to being AWOL:

* 19 to 26 July 1971 (8 days)
* 6 to 7 December 1971 (2 days)
* 3 January to 2 August 1972 (213 days)
* 14 August to 27 October 1972 (75 days)

8.  A DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 12 January to on or about 15 July 1972 and from on or about 14 August to on or about 3 November 1972.  

9.  On 14 November 1972, he consulted with legal counsel, who advised him of the basis for his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, the effects of a request for discharge for the good of the service, and of his rights.

10.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He indicated he understood if his request was accepted he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further indicated he understood that as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, be ineligible for many or all benefits administered by the Veterans Administration, be deprived of his rights and benefits as a veteran under both Federal and State laws, and encounter substantial prejudice in civilian life.  He elected not to submit statements in his own behalf.

11.  On 21 November 1972, the separation authority approved his request and directed that he be furnished an Undesirable Discharge Certificate.  On 22 November 1972, he was discharged accordingly.

12.  His DD Form 214 shows he completed 6 months and 14 days of total active service, with 298 days of lost time.  His service was characterized as under conditions other than honorable.  

13.  His record shows the Army Discharge Review Board (ADRB) reviewed his discharge on 7 November 1977 and again on 31 July 1978.  On both occasions, the ADRB denied his request for a change in the type and nature of his discharge.

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

	a.  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.

15.  Chapter 9 (Enlisted Qualification Record (DA Forms 20, 20A, 20B, and 2876) of Army Regulation 600-200 (Enlisted Personnel Management System), then in effect, stated the DA Form 20 was the basic document for maintaining current data necessary to manage enlisted personnel and document their military 


career and provided for the preparation and maintenance of the DA Form 20.  It stated areas of preference for assignment in CONUS and overseas would be entered in item 42.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for upgrade of his discharge.

2.  The applicant was 17 years of age when he enlisted.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  He elected not to submit a statement in his own behalf describing any mitigating circumstances he wanted the separation authority to consider in making a decision on his request.  The record shows all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

4.  He received NJP on two occasions, and the record shows he was AWOL for 298 days.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general discharge.

5.  The evidence of record contradicts his assertion that he was not AWOL for the amount of time shown on his DD Form 214.  There are inconsistencies in the dates he was AWOL recorded on his DA Form 20, the records of his NJP, and his Charge Sheet.  However, there is no evidence in his record and he has provided no evidence showing the 298 days of time lost recorded on his DD Form 214 is incorrect.

6.  Item 42 of his DA Form 20 indicates he had specified Hawaii as his preferred area for an overseas tour.  This entry does not indicate he served there.  There is no basis for correcting this entry because it is not an error.



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)                                         AR20120001234





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120001234



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1