IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20120001550 


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, in effect, upgrade of his undesirable discharge.

2.  The applicant states he was dedicated but lost it when his mother passed away while he was in Vietnam.  He really wanted to make the Army a career but lost his desire when he lost his rank.

3.  The applicant provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 17 March 1968
* his DD Form 214 (Report of Separation from Active Duty) for the period ending 12 March 1976

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 was inducted into the Army of the United States on 6 May 1966. He completed training and he was awarded military occupational specialty (MOS) 76P (Stock Control and Accounting Specialist).  He was honorably released from active duty on 17 March 1968 as an overseas returnee and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining service obligation.  He completed 1 year, 10 months, and 12 days of total active service.

3.  On 27 January 1969, the applicant enlisted in the Regular Army.  He completed training and he was awarded MOS 11B (light weapons infantryman).  

4.  A DA Form 2496 (Disposition Form), subject:  Reconciliation of Records, dated 2 February 1976, shows the applicant was in an absent without leave status (AWOL) during the following periods:

* 23 November - 1 December 1969
* 27 March - 16 April 1970
* 21 - 28 April 1970
* 3 August 1970 - 26 January 1972
* 27 January 1972 - 7 January 1976

5.  The DA Form 2496 also shows he received nonjudicial punishment on three occasions due to the AWOL offenses.  

6.  His discharge proceedings are not available.  However, his record contains a DD Form 214 that shows he was discharged on 12 March 1976 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 his service characterized as under conditions other than honorable and issuance of a DD Form 258A (Undesirable Discharge Certificate).  His
DD Form 214 also shows he accrued approximately 2,025 days of time lost.

7.  There is no evidence the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

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

9.  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.

10.  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 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 offense(s) 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.

3.  His record of indiscipline includes nonjudicial punishment on three occasions and approximately 2,025 days of time lost.  Based on his record of indiscipline, his overall record of service did not support the issuance of an honorable or general discharge at the time and it does not support an upgrade of his discharge now.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20120001550



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ABCMR Record of Proceedings (cont)                                         AR20120001550



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