IN THE CASE OF:	  

		BOARD DATE:	  11 September 2012

		DOCKET NUMBER:  AR20120005426 


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 to an honorable or a general discharge.

2.  The applicant states, in an administrative discharge questionnaire:

* he had difficulty concentrating or focusing during his military service
* he was high almost continually
* he attempted suicide while at Fort Sill, OK
* he was discharged after having been absent without leave (AWOL)
* he was given inadequate counsel as to alternatives
* no legal counsel was given and he had inadequate time to make a decision
* he was told fighting an undesirable discharge would take 45 days
* he wanted to avoid incarceration
* the drugs fogged his senses
* Vietnam protests influenced his thinking and the war made the decision to go AWOL rational
* he went AWOL to connect with his high school sweetheart

3.  The applicant provides:

* copies of all personnel, medical, and dental records in his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF)
* 
a statement of support from his brother

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 26 February 1971.  He completed training and he was awarded military occupational specialty (MOS) 35M (Aviation Navigation Equipment Repairman).

3.  While attending MOS training, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 6 July 1971, for failing to go at the time prescribed to his appointed place of duty on 2 July 1971
* 6 August 1971, for missing work call on 5 August 1971

4.  Subsequent to completing his MOS training, he was reassigned to the 291st Aviation Company, Fort Sill, OK.

5.  On 16 February 1972, he departed his unit in an AWOL status and on 16 March 1972, he was dropped from the rolls (DFR) of the Army as a deserter.  He returned to military control on 27 July 1972.

6.  On 28 July 1972, his command preferred court-martial charges against him for one specification of being AWOL from 16 February to 27 July 1972.

7.  On 3 August 1972, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible 

effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

8.  In his request for discharge, the applicant:

* understood he was making this request of his own free will and he had not been subjected to any coercion whatsoever
* understood that if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate
* understood he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* understood he could expect to encounter substantial prejudice in civilian life
* elected to submit a statement in his own behalf

9.  In his statement, he stated that if returned to duty he would go AWOL again.  He understood what an undesirable discharge was and he was willing to accept one.  Since his military service began, he had not gotten along with it and felt he never would.  He concluded that "In this man's Army Brass has everything and the enlisted members have nothing, as this is not going to change I want a discharge."

10.  On 9 and 14 August 1972, his immediate, intermediate, and senior commanders recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.

11.  On 21 August 1972, consistent with the applicant's chain of command's recommendations, the separation authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He directed the applicant be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  Accordingly, he was discharged on 23 August 1972.

12.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he was discharged under the 

provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by a court-martial with an Undesirable Discharge Certificate.  He completed 1 year and 6 days of total active service with 172 days of time lost.

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

14.  His brother submitted a statement of support wherein he states his brother (the applicant) was under duress when he requested the chapter 10.  After his discharge, he was involuntarily admitted to a mental hospital where he remained until June 1973.

15.  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 or general discharge is authorized, an undesirable discharge is normally considered appropriate.

	b.  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.  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 record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests 

for discharge for the good of the service - in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  He listed various contentions, some of which are conflicting, such the two statements "was given inadequate counseling" and "no legal counsel was given." He also listed a contention related to drugs, the Vietnam War, and his girlfriend.  However, nowhere did he support his contention with any documentary evidence.

3.  The available evidence clearly shows he elected to go AWOL and upon preferral of court-martial charges against him, he consulted with counsel.  His options were to face the court-martial that could have adjudged a dishonorable or a bad conduct discharge, or submit a voluntary request for discharge.  He voluntarily chose the discharge option.  He even indicated he would go AWOL again.  Those were choices that he made.  There is no evidence the Vietnam War, drugs, or his high school girlfriend caused him to make those choices.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

5.  In view of the foregoing, there is no 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)                                         AR20120005426



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ABCMR Record of Proceedings (cont)                                         AR20120005426



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