IN THE CASE OF:	 

		BOARD DATE:	  23 October 2012

		DOCKET NUMBER:  AR20120005549 


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 under other than honorable conditions discharge.

2.  The applicant states he had physical and anxiety problems.  He had an operation on his eye in April 1978.  If he had understood about the nature of the discharge he would have stayed and completed his enlistment.  He has medical records to show he lost his hearing.  Because of his hearing problem, he did not understand what the people were saying about the discharge.  He does not have a high school level of understanding; he is on an 8th grade level.  The captain gave him a "Chapter 25."  He does not know what this means but he understood that it was not a bad discharge.  However, it has kept him from getting government jobs and medical help.
 
3.  The applicant provides a copy of a letter from the Army Review Boards Agency, dated 1 March 2012.

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.  Following brief service in the U.S. Army Reserve during which he completed training as a wheeled vehicle mechanic, the applicant enlisted in the Regular Army on 16 August 1976.  His enlistment documents indicate he completed
12 years of education.

3.  He completed training as an infantryman and he was stationed in Germany.  On 21 and 27 January 1977, he received nonjudicial punishments under the provisions Article 15, Uniform Code of Military Justice (UCMJ) for missing formation.

4.  On 22 March 1977, he was reported absent without leave (AWOL) and he remained absent until 24 June 1977 when he was returned to military control.

5.  A separation physical examination found him qualified for further service or discharge.

6.  When charges were preferred against the applicant for his AWOL offense he consulted with counsel and he voluntarily requested 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 stated he understood the charges against him and admitted he was guilty of at least one offense for which a punitive discharge was authorized.  He acknowledged he would receive a discharge under other than honorable conditions.  He also indicated that he understood he would be deprived of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Veterans Administration and that he could expect to encounter substantial prejudice in civilian life because of this discharge.

7.  The chain of command recommended approval of the applicant's separation request.  On 6 July 1977, the separation authority, a major general, approved the applicant's request for discharge under the provisions of Army Regulation
635-200, chapter 10, and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate and reduced to private (PV1)/E-1.

8.  On 13 July 1977 the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed 7 months and 25 days of net active service during this period of enlistment with 110 days of time lost.


9.  On 3 May 1982, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge to either an honorable or a general discharge.  On 8 June 1983, having considered the evidence of record and documentation submitted by the applicant, the ADRB found his discharge to be proper and equitable.  As a result, the ADRB denied his request for upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides in:

	a.  Chapter 10 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.  Paragraph 3-7a 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.

	c.  Paragraph 3-7b 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.  There is no available evidence to substantiate the applicant's assertions that physical problems and associated stress were related to his extended AWOL offense.

2.  He contends that if he had better understanding of the ramifications of his discharge, he would have finished his enlistment.  However, it is quite probable that had he not requested discharge his trial by court-martial would have proceeded that may have resulted in a punitive discharge.

3.  The applicant's request for a voluntary discharge under the provisions of Army Regulation 635-200, chapter 10, even after consulting with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20120005549



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ABCMR Record of Proceedings (cont)                                         AR20120005549



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