BOARD DATE:	  23 August 2012

		DOCKET NUMBER:  AR20120002722 


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.

2.  The applicant states when he was discharged, he was told that by giving him a classification of "Undesirable for the Good of the Service" he could later request an upgrade of this status.  He has waited 40 years because he did not feel he deserved to have this status upgraded sooner than this.  He is a different person now and would like to have this status upgraded.

3.  The applicant did not provide any additional evidence.

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 previous consideration of his case is not available and the case is reviewed de novo.

3.  The applicant enlisted in the Regular Army on 2 December 1970.  He was assigned to Fort Knox, KY for completion of training.

4.  On 3 February 1971, he departed his training unit in an absent without leave (AWOL) status.  He remained absent until 14 February 1971.

5.  He further departed his unit on multiple occasions wherein he was reported in an AWOL or a deserter status.

6.  On 6 August 1971, consistent with his plea, he was convicted by a special court-martial of five specifications of being AWOL, from 3 to 26 February, 
2 March to 14 April, 2 to 14 May, 4 to 30 June, and 1 to 7 July 1971.  The Court sentenced him to confinement at hard labor for 5 months and a forfeiture of pay.  The convening authority approved his sentence on 12 August 1971.

7.  He was confined from 12 July to 12 October 1971.  However, shortly after his release from confinement, he again departed his unit in an AWOL status, on 11 November 1971.  He ultimately returned to military control on 6 February 1972.

8.  It appears his chain of command preferred court-martial charges against him for his last period of AWOL.

9.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  However, his record contains a DD Form 214 that shows he was discharged on 23 February 1972 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 issuance of an Undesirable Discharge Certificate.  This form also shows he completed 3 months and 24 days of total active service with 332 days of time lost.

10.  On 14 September 1974, the Army Discharge Review Board (ADRB), after careful consideration of his military record and all other available evidence, determined he was properly discharged.  Accordingly, his request for a change in his discharge was denied.

11.  On 2 April 1975, the ABCMR, after examining and considering his Army records and facts he presented, determined there was insufficient evidence presented to indicate probable material error or injustice.  Accordingly, his application was denied.
12.  On 4 August 1982, the ADRB again denied his application for a change in the type and nature of his discharge.

13.  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, 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.

	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 contends his undesirable discharge should be upgraded.

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 an offense 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 for the good of the service - 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.  With respect to his contention that the reason he was given this classification was so that he could request an upgrade at a later date, the Army has never had a policy whereby a discharge is upgraded due to the passage of time.  There is no evidence in the available record and the applicant did not provide documentation to warrant an upgrade of his discharge.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

5.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20120002722



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ABCMR Record of Proceedings (cont)                                         AR20120002722



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