BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120002851 


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, in effect, an upgrade of his undesirable discharge.

2.  The applicant states he was hospitalized when he was arrested and taken to jail.  He claims his stepfather and colonel made an agreement and he was released from the Army without signing papers.  He states he is suffering from several medical conditions and has been refused medication because of his discharge.  He claims his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates he would receive the benefits of an honorable discharge. 

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 13 June 1972, and was trained in and awarded military occupational specialty (MOS) 62M (Rough Terrain Forklift and Loader Operator).

3.  The applicant's record shows that during his active duty tenure, he earned the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 3 January 1973, for being absent without leave (AWOL) from
8 December 1972 to 2 January 1973
* 24 January 1973, for being AWOL from 4 to 16 January 1973

5.  On 9 August 1973, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 12 February to on or about 26 July 1973.

6.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial and the maximum punishment authorized under the UCMJ, of the possible effects of an undesirable discharge, and of the rights available to him.  Subsequent to receiving this legal counsel, 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-martial.  The applicant completed a statement indicating he disliked the Army and confirming he had no rehabilitation potential.  He further confirmed he understood he would receive an undesirable discharge and while he did not like it, he indicated he would be glad to take it.

7.  On 23 August 1973, the separation authority, a major general, approved the applicant’s voluntary request and directed he receive an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 13 September 1973, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed 8 months and 21 days of total active service with 190 days of time lost.  It also contains in item 25 (Education and Training Completed) the entry "Bnfts of Hon Disch" indicating he attended training pertaining to the benefits of an honorable discharge.  There is no entry indicating the applicant received an honorable discharge or that he was eligible for the benefits of an honorable discharge.


8.  On 28 April 1977, the Army Discharge Review Board (ADRB), after carefully considering the applicant’s military record and all other available evidence under the provisions of the Special Discharge Review Program, determined the applicant’s discharge was proper and equitable and denied the applicant’s request for a discharge upgrade.

9.  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 evidence of record confirms the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10 in order to avoid a punitive discharge.  After consulting with legal counsel, he completed a statement confirming he would accept an undesirable discharge and that he had no potential for rehabilitation.  The benefits of honorable discharge statement on his DD Form 214 only confirms he received training on that subject; it does not indicate he was eligible for those benefits.

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.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20120002851



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ABCMR Record of Proceedings (cont)                                         AR20120002851



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