IN THE CASE OF:	

		BOARD DATE:	    28 August 2012

		DOCKET NUMBER:  AR20120005596 


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 discharge should be upgraded because he served honorably for over 2 years and during wartime.  The applicant states that while on active duty he was severely injured during a night jump which resulted in a broken leg and ankle.  He was hospitalized for about two weeks.  He was unable to train and he felt alienated from his unit and as a result, he began to drink and started hanging with the wrong crowd.  He went to a party while on leave and he was arrested for burglary and spent 28 days in jail before bond could be posted by his family.  When he returned to his unit he was instantly placed in the stockade without proper representation.  He was released back to his unit after approximately 4 days.  He believed that he was not accepted and so he went absent without leave (AWOL).  

3.  After his return from AWOL status he was placed again in the stockade, where he was approached by an officer who informed him that he could get out of the military by signing for a discharge under other than honorable conditions.  The applicant adds that at the time he only had 6 months left on his 3-year term and was told that he could go to Fort Leavenworth or take the discharge that was offered.  The applicant believes that he was not properly informed and represented by the military and he was unable to make reasonable decisions.  He states he was not involved in the burglary that he was accused of and he wants his honor back.  He was very proud to have served his country and he would like the record to show that he was a good Soldier.  He finally states that it was not fair that he had to live with the dishonor due to something he had no control over.  He would appreciate the consideration and time shown in order to correct this injustice that has haunted him for over 30 years.    

4.  The applicant provided a self authored letter in support of his application.

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.  On 26 June 1974, the applicant enlisted in the Army.  He was trained in and awarded military occupational specialty 16R (Vulcan Crewman).

3.  The applicant’s DA Form 2-1 (Personnel Qualification Record) shows three incidents of being AWOL, from 16 July to 18 August 1976, from 19 to 22 August 1976, and from 23 August to 3 September 1976.

4.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  His record contains a DD Form 214 that shows he was discharged on 26 January 1977 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, with a discharge under other than honorable conditions.  He completed 2 years, 5 months, and 13 days of total active service with 48 days of time lost due to being AWOL.

5.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  At the time, an undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.

7.  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.

8.  Paragraph 3-7b of the same regulation 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.

9.  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 regulation provides that 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's contentions were carefully considered and found to be insufficient in merit.  There is no evidence and the applicant did not present any evidence which shows that the discharge he received in 1977 was unjust and/or unfair.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of an offense(s) punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Discharges under the provisions of Army Regulation
635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant 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 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.  
Further, the evidence of record does show the applicant went AWOL on three different occasions for 48 days.

3.  In view of the foregoing, there is no evidentiary basis for granting the applicant's requested relief.

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)                                         AR20120005596



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ABCMR Record of Proceedings (cont)                                         AR20120005596



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