IN THE CASE OF:	  

		BOARD DATE:	  10 July 2012

		DOCKET NUMBER:  AR20120001252 


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 under other than honorable conditions, Undesirable Discharge (UD), be upgraded.  

2.  The applicant states he had family problems and was the subject of racism during his military service.  

3  The applicant provides a self-authored statement and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his request.  

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’s record shows he enlisted in the Regular Army on 15 October 1969. 

3.  On 14 April 1970, after failing to report to the Overseas Replacement Company, Fort Dix, New Jersey, the applicant was declared absent without leave (AWOL).  He was dropped from the rolls (DFR) of the organization on 30 June 1970 and remained away for 195 days until returning to military control at the Personnel Control Facility (PCF), Fort Knox, Kentucky on 26 October 1970.  

4.  On 28 November 1970, the applicant departed AWOL from the PCF, Fort Knox.  He was DFR on 3 December 1970, and remained away for 431 days until returning to military control on 1 February 1972.  

5.  A DD Form 458 (Charge Sheet) was prepared against the applicant preferring a court-martial charge for two specifications of violating Articles 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 14 April to on or about 26 October 1970, and from on or about 28 November 1970 to on or about 1 February 1972.  

6.  On 17 February 1972, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial and the maximum punishment authorized under the UCMJ, of the possible effects of an undesirable discharge, and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel),
chapter 10, for the good of the service - in lieu of trial by court-martial.  The applicant elected not to submit statements in his own behalf.  

7.  The specific approval document approving the applicant’s discharge is not on file in the record.  The record does contain orders issued at Fort George G. Meade, Maryland on 14 March 1972 which directed the applicant’s UD.  The 
DD Form 214 on file shows the applicant was discharged, in the rank of private, E-1, on 14 March 1972, after completing 8 months and 9 days of creditable active military service and accruing 626 days of time lost due to AWOL and confinement.  

8.  There is no indication that the applicant 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 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.  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 discharge or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  However, at the time the applicant was discharged a UD was considered appropriate.

	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 to upgrade his UD because he had family problems and suffered racism in the Army at the time he served has been carefully considered.  However, while allegations of racism are taken very seriously, absent any evidence of record or independent evidence submitted by the applicant corroborating his assertions, there is insufficient evidence to support his claim.  

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  As a result, 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)                                         AR20120001252



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ABCMR Record of Proceedings (cont)                                         AR20120001252



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