IN THE CASE OF:	  

		BOARD DATE:	  10 July 2012

		DOCKET NUMBER:  AR20120001654 


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 undesirable discharge (UD) be upgraded to an honorable discharge (HD).  

2.  The applicant states at the time he was told he could either go to Fort Riley, Kansas or resign from the Army.  He claims he was not told he would not receive an HD.  

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 21 October 1970.  He was trained in and awarded military occupational specialty (MOS) 13A (Field Artillery).  His record shows he was advanced to private first class/E-3 on 15 September 1971, and that this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private/E-2 for cause on 20 April 1972, and to private/E-1 on 25 November 1972.  His record documents no acts of valor or significant achievement.  

3.  The applicant’s disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions between 9 December 1970 and 
25 January 1973 for two separate incidents of being absent without leave (AWOL) and for failure to report to his appointed place of duty at the time prescribed.  It also includes a special court-martial (SPCM) conviction on 17 April 1972, for two specifications of violating Article 86 of the UCMJ by being AWOL.  

4.  On 15 November 1972, a DD Form 458 (Charge Sheet) was prepared against the applicant preferring a court-martial charge for three specifications of violating Article 86 of the UCMJ by being AWOL from on or about 15 May through on or about 3 June 1972; from or about 5 through on or about 27 July 1972; and from on or about 5 September through on or about 31 October 1972.  

5.  On 15 November 1972, 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.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.  

6.  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. 

7.  On 25 November 1972, the separation authority approved the applicant’s voluntary request and directed he receive an Undesirable Discharge Certificate.  On 30 November 1972, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed 1 year, 7 months, and 
13 days of creditable active duty service and accrued 168 days of time lost due to AWOL.  
8.  On 9 August 1973, the Army Discharge Review Board (ADRB), after carefully considering the applicant’s military service record and all other available evidence, determined the applicant’s discharge was proper and equitable and denied his appeal for an upgrade of his UD.  On 25 September 1980, the ADRB again reviewed the applicant’s case and after carefully considering the applicant’s military service record and all other available evidence, determined the applicant’s discharge was proper and equitable, and voted unanimously to deny the applicant’s request to upgrade his discharge.   

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 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 for upgrade of his UD because he was never told he would not receive an HD has been carefully considered.  However, the evidence of record confirms the applicant was fully informed that as a result of his requesting discharge in lieu of trial by court-martial, he could receive a UD.  It further shows he acknowledged that he was advised of the possible effects of receiving a UD.  As a result, 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 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.  

3.  The applicant’s overall record of service is 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 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)                                         AR20120001654



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ABCMR Record of Proceedings (cont)                                         AR20120001654



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