IN THE CASE OF:	  

		BOARD DATE:	  25 September 2012

		DOCKET NUMBER:  AR20120005217 


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 discharge under other than honorable conditions to honorable or general under honorable conditions.

2.  The applicant states he was not provided counsel and was unaware of the ramifications he would later face as a result of his type of discharge.  Counsel was never offered even though it should have been part of the process.  Further, he was absent without leave (AWOL) at the time of his discharge because his mother was the victim of domestic abuse.  He was the oldest son and she had no one else to rely on.  He was young and because of the crisis that was occurring at home he was in no position to make such an uninformed decision.  Had he known that his discharge would affect his entitlement to receive veterans' services he would have never accepted an undesirable discharge.

3.  The applicant provides no additional evidence.

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 12 October 1972 at the age of 18 years and 3 months.  He completed his initial training and he was awarded military occupational specialty 95B (Military Police).  He was subsequently assigned to the 553d Military Police Company, Fort Campbell, KY.

3.  The facts and circumstances of his discharge proceedings are not available; however, his record shows the following:

	a.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL on three separate occasions.

	b.  Summary Court-Martial Orders Number 58, dated 20 March 1974, show he pled guilty and was found guilty of being AWOL from 10 December 1973 to 11 February 1974.

	c.  A DA Form 2496-1 (Disposition Form), dated 23 June 1975, shows he was interviewed at the U.S. Army Personnel Control Facility (USAPCF) and he indicated that he was AWOL because his mother was sick and he could not get leave.  He wanted to be separated from the Army due to his family problems.

4.  On 30 July 1975, he was discharged under conditions other than honorable under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  His records show he was credited with 1 year, 9 months, and 14 days of active service.  The applicant was unavailable for signature.

5.  Item 27 (Remarks) of his DD Form 214 shows he had 370 days of lost time for the following periods:

* 23-29 April 1973
* 16-26 June 1973
* 10-13 July 1973
* 8-16 August 1973
* 10 October-1 November 1973
* 26 November 1973
* 10 December 1973-10 February 1974
* 2 August 1974-22 January 1975
* 12 April-19 June 1975

6.  The Army Discharge Review Board denied his request for an upgrade on 19 April 1989.

7.  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.  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.

8.  Army Regulation 635-200, 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.

9.  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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his discharge under other than honorable conditions to honorable or general.

2.  He contends he was young and he was AWOL because he had to deal with a crisis at home.  His records show he was more than 18 years of age at the time of his first offense and there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

3.  He further contends he was not provided counsel and was unaware that he would be ineligible for veterans' benefits based on his type of discharge.  Unfortunately, his record is void of the specific facts and circumstances surrounding his discharge, but his record does contain a USAPCF interview worksheet in which he clearly indicated he wanted to be separated from the Army as soon as possible due to family problems.

4.  His DD Form 214 shows he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10.  It appears he was charged with the commission of an offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation635-200, chapter 10, are voluntary requests for discharge for the good of the service in lieu of trial by court-martial.  He 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 admitted guilt and 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 that his discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, he is not entitled to an upgrade of his discharge to honorable or general under honorable conditions.

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 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)                                         AR20120005217



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ABCMR Record of Proceedings (cont)                                         AR20120005217



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