IN THE CASE OF:	  

		BOARD DATE:  12 July 2012

		DOCKET NUMBER:  AR20120001530 


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 an upgrade of his undesirable discharge (UD). 

2.  The applicant states he was beat up and put in the hospital and then was put in the stockade while still under care.  

3.  The applicant provides no documentary evidence 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 enlisted in the Regular Army on 25 June 1968.  He completed basic combat training at Fort Campbell, Kentucky, and was assigned to Fort Dix, New Jersey to attend advanced individual training (AIT) in military occupational specialty (MOS) 36K (Field Wireman) in September 1968.  
3.  The applicant’s record documents no acts of valor or significant achievement.  It does reveal a disciplinary history that includes his accrual of 354 days of time lost due to separate periods of being absent without leave (AWOL) between
8 September 1968 and 23 September 1969.  

4.  The applicant’s record is void of any indication he ever hospitalized and a 
Standard Form (SF) 88 (Report of Medical Examination) in the record documenting his separation medical examination shows he was fully qualified for retention/separation and that he suffered from no disqualifying physical or mental conditions that would have warranted his separation processing through medical channels at the time. 

5.  On 29 September 1968, the applicant departed AWOL from his AIT unit at Fort Dix.  He was dropped from the rolls (DFR) of the unit on 9 October 1968, and he remained away for 58 days until being returned to military control at Fort George G. Meade, Maryland on 26 November 1968.  Based on this offense, on 10 December 1968, a summary court-martial found the applicant guilty of violating Article 86 of the Uniform Code of Military Justice (UCMJ) for this period of AWOL.  

6.  On 7 January 1969, the applicant departed AWOL from the Special Processing Battalion, Fort George G. Meade.  He was DFR on 7 February 1969.  He remained away for 259 days until returning to military control on 
23 September 1969.  

7.  On 29 September 1969, a DD Form 458 (Charge Sheet) was prepared against the applicant preferring a court-martial charge for violating Article 86 of the UCMJ by being AWOL from on or about 7 January through on or about
24 September 1969.  

8.  On 2 October 1969, the applicant consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial that could lead to a bad conduct or dishonorable discharge, and of the maximum punishment authorized under the UCMJ.  The applicant was also fully advised of the possible effects of an undesirable discharge and of the rights available to him.  Subsequent to receiving this 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.  



9.  In his request for discharge, the applicant acknowledged he understood if his request for discharge were accepted he could receive a UD.  Further, he acknowledged his understanding that he could receive an UD and as a result, could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 

10.  On 22 October 1969, the separation authority approved the applicant’s voluntary request and directed he receive an Undesirable Discharge Certificate.  On 22 October 1969, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed 4 months and 4 days of creditable active duty service and accrued 354 days of time lost due to AWOL and confinement.  

11.  There is no evidence of record indicating the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 

12.  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 GD is authorized, a discharge under other than honorable conditions is normally considered appropriate.  However, at the time the applicant was discharged an undesirable discharge 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 that his discharge be upgraded because he had been beaten and hospitalized at the time has been carefully considered.  However, the record shows he fully medically qualified for retention separation at the time of his discharge processing, as evidenced by the SF 88 on file.  As a result, there is insufficient evidence to support this 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 his commander, 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.  His overall record of service was not sufficiently meritorious to support the issuance of an honorable or a general discharge by the separation authority at the time of his final discharge and absent evidence of an error or injustice in his discharge processing, it does not support an upgrade to an honorable or a general discharge at this late date.

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)                                         AR20120001530



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ABCMR Record of Proceedings (cont)                                         AR20120001530


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