IN THE CASE OF:	  

		BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20120004795 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that his discharge should be upgraded because it was improper and unjust.  He was young and his counsel misled him to accepting a discharge under other than honorable conditions.  All his counsel wanted to do was make a deal and his counsel convinced him that if he did not accept a discharge under chapter 10 he would go to Leavenworth.  He also states that his problems started when he was transferred to Fort Eustis, Virginia and someone spiked his drink with “Purple Haze” and cause him to be taken to the hospital.

3.  The applicant provides a one-page statement explaining his application and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 in Richmond, Virginia with parental consent on 22 January 1971, for a period of 3 years for training as a food service specialist and training under the buddy basic training plan.  He was transferred to Fort Campbell, Kentucky to undergo his basic training.

3.  On 13 March 1971, nonjudicial punishment (NJP) was imposed against him for being disrespectful in language towards a superior commissioned officer.

4.  He completed his basic training and was transferred to Fort Leonard Wood, Missouri to undergo his advanced individual training (AIT).  However, on 4 June 1971 he went absent without leave (AWOL) and remained absent until he was returned to military control at Fort Belvoir, Virginia on 25 July 1971.  On 29 July 1971, NJP was imposed against him for that offense and he was transferred to Fort Eustis, Virginia on 3 August 1971 for duty as a cook helper.

5.  On 25 April 1972, the applicant was convicted by a special court-martial of being AWOL from 13 September 1971 to 7 March 1972, 27 March to 28 March 1972 and 3 April to 5 April 1972.  He was sentenced to confinement at hard labor for 3 months, a forfeiture of pay, and reduction to the pay grade of E-1.  He was transferred to Fort Riley, Kansas to serve his confinement. 

6.  On 19 July 1972, he was transferred to Fort Lee, Virginia and on 24 October 1972, he again went AWOL and remained absent in desertion until he was returned to military control at Fort Lee on 9 October 1973.  He was transferred to Fort Meade, Maryland where charges were preferred against him for the absence.

7.  On 18 October 1973, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – General Provisions for Discharge and Release), chapter 10.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He also declined the opportunity to submit a statement in his own behalf.

8.  The appropriate authority approved his request for discharge and directed issuance of an Undesirable Discharge Certificate.

9.  Accordingly, he was discharged on 5 November 1973 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with the issuance of an undesirable discharge.  He completed 1 year of total active service and had 644 days of lost time due to AWOL and confinement.

10.  There is no evidence in the available records to show that he 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.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the characterization of service he or she might receive.  An undesirable discharge was normally considered appropriate at the time of the applicant's discharge.

12.  Army Regulation 635-200, 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's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence or mitigating circumstances before a trial by court-martial, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

3.  The applicant's contentions and supporting documents have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the repeated nature of his misconduct, which started before he arrived at Fort Eustis, and the extensive amount of his lost time.  His service simply did not rise to the level of a general discharge.

4.  Accordingly, there appears to be no basis to grant his request for an upgrade of his 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)                                         AR20120004795





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ABCMR Record of Proceedings (cont)                                         AR20120004795



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