IN THE CASE OF:	  

		BOARD DATE:	  13 September 2012

		DOCKET NUMBER:  AR20120003677 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he enlisted in the Army and reported for One Station Unit Training at Fort Sill, Oklahoma in March 1976.

   a.  He successfully completed his training and he was granted ordinary leave prior to being deployed to Stuttgart, Germany.

   b.  He returned from leave and reported early to make his port call.  He was told that his blood pressure was too high and he was delayed from flying for 
3 days.  After the third day he was told he would be declared absent without leave (AWOL), placed in military confinement, and discharged with an under other than honorable conditions discharge.

3.  The applicant provides no additional 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 2 March 1976 for a period of
4 years for training in military occupational specialty (MOS) 13B (Field Artillery Crewman) and assignment to U.S. Army, Europe.

3.  Upon completion of training he was awarded MOS 13B, issued orders for overseas movement, and granted ordinary leave en route to Germany.

4.  On 26 September 1977, the applicant surrendered to military authorities at Fort Ord, California.

5.  Court-martial charges were preferred against the applicant for being AWOL from 26 June 1976 to 26 September 1977.

6.  The applicant consulted with legal counsel and he voluntarily requested discharge in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	a.  He was advised that he might be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an under other than honorable discharge.

	b.  He was also advised that he could submit any statements he desired in his own behalf.  The applicant submitted a statement with his request wherein he indicated he committed the offense for which he was charged because of "unexpected family problems."  He added "I want out of the Army because I cannot cope with it."

	c.  The applicant and his counsel placed their signatures on the document.

7.  The applicant's immediate and intermediate commanders recommended approval of the request for discharge with an Under Other Than Honorable Conditions Discharge Certificate.
8.  The separation authority approved the applicant's request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

9.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 19 October 1977 in accordance with Army Regulation
635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.

	a.  He had completed 4 months and 16 days of active service.

	b.  He had 457 days of time lost under Title 10, U.S. Code, section 972.

10.  A review of the applicant's military personnel records failed to reveal any evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 shows 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 or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Chapter 3, 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.  Chapter 3, 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 under other than honorable conditions discharge should be upgraded because his blood pressure was too high, which delayed him from overseas movement for a period of three days, and resulted in him being in an AWOL status.

2.  The applicant's contention was carefully considered.

   a.  Records show the applicant was in an AWOL status from 26 June 1976 to 26 September 1977.

   b.  At the time the applicant returned to military control, he acknowledged being in an AWOL status (for more than 15 months) because of "unexpected family problems."
   
   c.  Thus, the applicant's contention is not supported by the evidence of record.

3.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offense that led to his discharge outweighs his overall record of service.  Considering all the facts of the case, the characterization of service was appropriate and equitable.

4.  The applicant elected to request discharge in lieu of being court-martialed.

	a.  He had a total of 457 days (1 year and 3 months) of lost time and he completed less than 5 months of his 4-year enlistment obligation.

	b.  Thus, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general discharge.  

5.  Therefore, there is no basis for granting the 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)                                         AR20120003677



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ABCMR Record of Proceedings (cont)                                         AR20120003677



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