IN THE CASE OF:	  

		BOARD DATE:	  21 June 2012

		DOCKET NUMBER:  AR20120001689 


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) to a fully honorable discharge. 

2.  The applicant states he was authorized leave from Germany at the time and travelled through New York to Texas to see his pregnant wife whom he married three months earlier.  He then went to Mineral Wells, Texas for a hardship discharge and he was attached to a company there, prior to the expiration of his leave.  His parent unit in Germany would not release him and he learned that they dropped him from the morning report the day he went on leave.  Although he was attached to a unit, his commander told him he was AWOL (absent without leave).  After about 2 or 3 months, he was ordered to return to his unit and upon arrival, he was presented with court-martial charges.  The commander told him he would put him in the stockade.  Having never been in jail before and being young, he took the deal and he was ultimately discharged with an under other than honorable conditions discharge.  

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  

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 records show he was born on 3 April 1955 and he enlisted in the Regular Army on 16 May 1972 for 3 years at 17 years and 1 month of age.  He completed basic combat training and he was reassigned to Fort Sam Houston, TX, for completion of training for military occupational specialty (MOS) 91A (Medical Specialist).

3.  On 20 September 1972, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty. 

4.  He was reassigned to Fort Ord, CA, for completion of a second MOS training and he appears to have been awarded MOS 64C (Motor Transport Operator).  

5.  While at Fort Ord, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.

6.  He served in Germany from 19 March 1973 to 25 October 1973.  He was awarded the National Defense Service Medal and Expert Marksmanship Qualification Badge with Rifle Bar.

7.  On 13 April 1973, he departed his unit in an AWOL status and on 11 May 1973, he was dropped from the Army rolls as a deserter.  He returned to military control on xx.

8.  His command preferred court-martial charges against him for:

* two specifications of being AWOL from 7 to 31 August 1973 and from 7 to 13 September 1973
* one specification of disobeying a lawful order

9.  On 24 September 1973, his command preferred additional court-martial charges against him for:

* two specifications of being AWOL from 13 to 30 April 1973 and 13 July to 11 August 1973
* two specifications of disobeying a lawful order from his officers 

10.  On 1 October 1973, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge, he acknowledged he:

* was making this request on his own free will and he had not been subjected to any coercion whatsoever
* understood that if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate
* he acknowledged he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he acknowledged he understood he could expect to encounter substantial prejudice in civilian life
* he elected not to submit a statement on his own behalf

11.  On 2 October 1973, his immediate, intermediate, and senior commanders recommended approval with the issuance of an Undesirable Discharge Certificate.  

12.  On 3 October 1973, consistent with the applicant's chain of command's recommendations, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  

13.  The DD Form 214 he was issued shows he was discharged on 26 October 1973 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial with a UD.  He completed a total of 1 year, 4 months, and 15 days of creditable active military service and he had 26 days of lost time recorded on his DD Form 214.

14.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 or general discharge is authorized, at the time a UD was normally considered appropriate.

	a.  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

	b.  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 records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He had an opportunity to make a statement when he requested discharge and elected not to do so.  Further, his discharge accurately reflects his overall record of service.

2.  The applicant was 17 years and 1 month of age at the time of his enlistment. However, there is no evidence the applicant's age caused him to go AWOL or that he was any less mature than other Soldiers of the same age who successfully completed their term of service. 

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.
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)                                         AR20120001689





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ABCMR Record of Proceedings (cont)                                         AR20120001689



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