BOARD DATE:	  21 August 2012

		DOCKET NUMBER:  AR20120003628 


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 an honorable discharge.  

2.  He states:

	a.  He served honorably while he was in the active Army.  During this time, he received only $23.00 pay per month while he was in Vietnam.  When he returned from Vietnam he did not receive any pay for 2 or 3 months.

	b.  He went AWOL (absent without leave) and he got a civilian job in Birmingham, AL because he was not being paid.

	c.  He went to his captain and they checked on his pay.  They were both told his pay voucher was lost and he could not get paid until the vouchers were located.

	d.  he returned to Fort McClellan, AL after being AWOL for 3 weeks.

	e.  his discharge was too harsh for his offense.

3.  He provides:

* a petition for change of name
* a receipt from the Montgomery County Probate Court

an authorization for release of arrest record from the Montgomery County Sheriff's Office
* four character reference letters

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 29 December 1970.  He served in Vietnam from 24 August 1971 to 8 April 1972.

3.  His record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 19 October 1972 for being AWOL from 1 to 30 September 1972
* 20 November 1972 for failing to go at the time prescribed to his appointed place of duty on 11 November 1972

4.  His discharge packet is not available for review.  However, his record contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 16 February 1973 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial court-martial with issuance of an Undesirable Discharge Certificate.  He completed 1 year,
11 months, and 6 days of total active service.  His DD Form 214 also shows two periods of time lost from 1 to 29 September 1972 and from 18 December 1972 to 29 January 1973 for a total of 72 days.

5.  He provided four character reference letters from acquaintances and business associates.  They describe him as being an intelligent, dedicated, responsible, ambitious, trustworthy, and business-minded person; an excellent employee.


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

7.  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 states 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 states 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 he went AWOL because he did not get paid for 2 or 3 months.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct (AWOL) that appears to have led to his discharge.

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(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge 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 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.  The applicant's character references are acknowledged; however, these documents are not sufficiently mitigating to warrant an upgrade in this case.

4.  His service record shows he received two Article 15s and he accrued 72 days of time lost.  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.

5.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20120003628



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ABCMR Record of Proceedings (cont)                                         AR20120003628



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