BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120002710 


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 upgrade of his undesirable discharge to a general under honorable conditions discharge.  

2.  He states he has medical problems in his back and hip that occurred while he was on active duty.  He really needs medical treatment. 

3.  He 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 initially enlisted in the Regular Army on 25 February 1961 and he continued to serve on active duty through two reenlistments, on 19 December 1963 and 9 August 1968.  

3.  On 30 June 1972, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 16 to 28 June 1972.  

4.  On 21 August 1973, charges were preferred against him for being AWOL from 3 August 1972 to 14 August 1973.

5.  He consulted with legal counsel and voluntarily requested discharge 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.  In doing so, he acknowledged he might encounter substantial prejudice in civilian life.  He also acknowledged he might be ineligible for many or all Army benefits administered by the Veterans Administration if an undesirable discharge was issued.  He didn't submit statements in his own behalf.

6.  The company commander recommended approval with an undesirable discharge.  The intermediate and senior intermediate commanders recommended disapproval and recommended the applicant be tried by a special court-martial.

7.  He underwent a separation physical on 23 August 1973 and was found qualified for separation with a physical profile of 112111.  He indicated on his Standard Form 88 (Report of Medical Examination) that he was in good health.  The examining physician indicated the applicant had a laminectomy (an orthopaedic spine operation to remove the portion of the vertebral bone called the lamina).  On his Standard Form 93 (Report of Medical History), he indicated he had a back operation at Wiesbaden Air Base Hospital.  

8.  On 6 September 1973, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate.

9.  He was discharged on 17 October 1973 after completing 4 years, 1 month, and 14 days of creditable active service during the period under review and 7 years, 5 months, and 14 days prior active service.  He had 390 days of lost time.

10.  His service record doesn't indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.
11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  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, the 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 to an individual who was discharged for the good of the service.

   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 fact that the applicant is currently experiencing medical problems is unfortunate.  However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances.  

2.  The applicant’s record shows he was charged with the commission of the offense of AWOL which is 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.  The applicant 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 the rights of the applicant were fully protected throughout the separation process.  

3.  His service record shows he received one Article 15 for being AWOL and he had 390 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20120002710





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ABCMR Record of Proceedings (cont)                                         AR20120002710



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