IN THE CASE OF:	   

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20120001714 


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 unable to read at a greater than 3rd grade level at the time he served.  

3.  The applicant provides no documentary evidence in support of his application.  

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 8 August 1969.  He successfully completed basic combat training and advanced individual training (AIT) at Fort Dix, New Jersey, and was awarded military occupational specialty (MOS) 94B (Cook) on 29 January 1970. 
3.  The applicant’s record shows he was first advanced to private/E-2 on 
29 January 1970, and that this is the highest rank he attained while serving on active duty.  It further shows he was reduced to private/E-1 for cause on 16 May 1970, and after being advanced back to private/E-2 on 17 June 1970, he was again reduced to private/E-1 for cause on 22 September 1970.  His record documents no acts of valor or significant achievement.  

4.  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 four separate occasions between 6 October 1969 and 14 May 1970, for three separate absent without leave (AWOL) offenses and one offense of failing to go to his appointed place of duty at the time prescribed.  

5.  On 6 August 1970, a DD Form 458 (Charge Sheet) was prepared against the applicant preferring a court-martial charge for two specifications of violating Article 86 of the UCMJ by being AWOL from on or about 13 July through on or about 29 July 1970; and from or about 11 August through on or about 19 August 1970.  

6.  On 28 August 1970, 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 this legal counsel, the applicant 
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-marital.

7.  In his request for discharge, the applicant acknowledged he understood if his request for discharge were accepted he could receive an undesirable discharge.  Further, he acknowledged his understanding that he could receive a 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. 

8.  On 22 September 1970, the separation authority approved the applicant’s voluntary request and directed he receive an Undesirable Discharge Certificate.  On 7 October 1970, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed 11 months and 21 days of creditable active duty service and accrued 71 days of time lost due to AWOL.  

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

10.  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 to upgrade his UD because he was reading at the 3rd grade level at the time he served has been carefully considered.  However, the record shows the applicant successfully completed advanced individual training and was awarded an MOS which demonstrates he had the ability to perform duties in that MOS for the period of enlistment had he chosen to do so.  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 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.  
3.  The applicant’s 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 it does not support an upgrade to an honorable or a general discharge at this late date.

4.  In view of the foregoing, 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)                                         AR20120001714



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ABCMR Record of Proceedings (cont)                                         AR20120001714



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