BOARD DATE:	  4 October 2012

		DOCKET NUMBER:  AR20120003268 


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 general discharge (GD).

2.  The applicant states he has proof he was supposed to receive a GD instead of the under other than honorable conditions discharge he subsequently learned he was issued.

3.  The applicant provides:

* Self-authored statement
* 3rd Endorsement (3d Ind), undated

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 military record shows he enlisted in the Regular Army on 18 December 1972.  It also shows he never completed his initial entry training.

3.  His DA Form 20 (Enlisted Personnel Record) shows he accrued a total of 262 days lost time as a result of being absent without leave (AWOL) or imprisoned during the following five separate periods totaling:

* 11 February - 16 March 1973 (34 days AWOL)
* 13-17 May 1973 (5 days AWOL)
* 26 May - 9 August 1973 (76 days imprisonment)
* 13 August - 10 September 1973 (28 days AWOL)
* 11 September 1973 - 8 January 1974 (119 days AWOL)

4.  On 30 March 1973, he accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for departing AWOL from on or about 11 February - 17 March 1973.

5.  On 17 July 1973, a special court-martial (SPCM) convicted the applicant of unlawfully receiving United States currency in the amount of $10.00.  The resulting sentence consisting of confinement at hard labor for 3 months and forfeiture of $180.00 a month for 3 months was approved on 3 August 1973.

6.  On 13 September 1973, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ for being AWOL from on or about 13 August to 10 September 1973 and from 11 September 1973 to 8 January 1974.

7.  On 21 January 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

8.  In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration and he could be deprived of his rights and benefits as a veteran under both Federal and State 

laws.  He also indicated he understood he could face substantial prejudice in civilian life if he were issued a UD.

9.  The applicant's Army Military Human Resources Record (AMHRR) includes three 3d Ind documents that were prepared for the separation authority's signature which provided him the following options:

* deny the applicant's request
* approve the applicant's request with the issuance of a GD
* approve the applicant's request with the issuance of a UD

10.  On 9 February 1974, the separation authority approved the applicant's request for discharge and directed he be discharged under the provisions of Army Regulation 635-200 (Personnel Separations– Enlisted Personnel), chapter 10, with an UD.  He authenticated the aforementioned document with his signature.

11.  On 4 March 1974, the applicant was discharged accordingly in the lowest enlisted rank of PVT/E-1.  His DD Form 214 shows he completed 5 months and 28 days of active military service for the period covered.

12.  The applicant provides a copy of the 3d Ind document prepared for the separation authority's signature that approved his request for discharge and issuance of a GD.  This document is undated and unsigned.

13.  On 25 May 1982, after carefully reviewing the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and voted to deny his request for an upgrade.

14.  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 (HD) or GD is authorized, an under other than honorable 

conditions discharge is normally considered appropriate.  However, a UD was considered appropriate at the time the applicant was discharged.

	b.  Paragraph 3-7b provides that a GD 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UD should be upgraded to a GD, as indicated on the 3d Ind document he provides.  While this document is also included in his AMHRR, it was never authenticated with the separation authority's signature or a date.  However, it appears the document was prepared in conjunction with multiple documents in which the separation authority had an option of selecting the most appropriate action.  The evidence of record clearly shows the separation authority never signed the document issuing him a GD, but signed the document directing that the applicant be issued an UD.

2.  The evidence of record shows the applicant was convicted by an SPCM of unlawfully receiving U.S. currency and he was additionally charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL for 147 days.  Further, during his brief period of active service, he accrued a total of 262 days lost time.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  Considering the multiple AWOL offenses during his short period of active duty, his service clearly did not support a GD or HD.

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)                                         AR20120003268





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ABCMR Record of Proceedings (cont)                                         AR20120003268



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