IN THE CASE OF:	  

		BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR200120005517


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 discharge.

2.  The applicant states his request to return to his original unit was not acted upon.  At the present time he would return to active duty and finish his time anywhere in the world at 30 minutes notice.

3.  The applicant did not provide any additional supporting documents.

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 10 June 1974, and following training at Fort Knox and Fort Sill, served as a Cannon Crewman, military occupational specialty 13B, with the 2nd Armored Division at Fort Hood, Texas where he achieved the rank of private first class.

3.  The applicant went absent without leave (AWOL) on 11 August 1975, was dropped from the rolls on 9 September 1975, and was apprehended by military authorities and returned to military control on 16 January 1976.

4.  On 21 January 1976, charges were filed against the applicant for being AWOL during the period 11 August 1975 through 16 January 1976 for a total of 151 days.

5.  On 23 January 1976, the applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible penalty under the Uniform Code of Military Justice, the possible effects of an under other than honorable discharge, and of the procedures and rights available to him.  Following receipt of legal counsel, the applicant voluntarily requested separation from the service in lieu of trial by court-martial.  

6.  In his request for discharge, the applicant acknowledged that discharge under other than honorable conditions could deprive him of many/all Army benefits and that he would be ineligible for many or all benefits offered by the Veterans Administration as well as other rights under federal and state law.

7.  The applicant provided a letter with his request for separation in which he described the Army as “the worst thing in the world” and stated “if I don’t get out of the Army this time I will do something else to get out as I so much want out of the Army.”  This same letter references his also using unspecified pills, something he claims he did not do before entering the Army.

8.   On 28 January 1976, the discharge authority approved the applicant's request and directed his discharge with an undesirable discharge.  He was discharged on 10 February 1976 with an under other than honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 10.  The applicant's DD Form 214 reflects he completed 1 year, 3 months, and 3 days of creditable active military service and had 151 days of lost time due to being AWOL.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the regulation 


provides, in pertinent part, when a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  An under other than other conditions discharge is normally considered appropriate.

10.  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  (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

11.  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 request that his discharge should be upgraded was carefully considered and it was determined that it lacks sufficient evidence to support the request. 

2.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  Discharges under this chapter are due to a voluntary request for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  There is no evidence to show he requested to return to his original unit, and he stated very strongly that he wanted out of the Army.

4.  Based on the applicant’s record of indiscipline his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His conduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade to 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)                                         AR20120006704



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120005517



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1