IN THE CASE OF:	  

		BOARD DATE:	  8 November 2012

		DOCKET NUMBER:  AR20120007496 


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, in effect, an upgrade of his undesirable discharge to an honorable or general, under honorable conditions discharge.

2.  The applicant states:

	a.  He feels like his DD Form 214 (Report of Separation from the Active Duty) should reflect his character of service as honorable or the very least general, under honorable conditions as any charges that were brought against him were never proven.  

	b.  He has been discharged since 1974, was never convicted of a crime, was disabled since his original enlistment, and he reenlisted in spite of his disabilities; until he became too disabled to continue.  He volunteered and completed two tours while enduring painful disabilities.  While in Germany, he was charged with something he wasn't involved in and was never convicted of.  After being held for medical reasons, he went back to the States expecting a medical discharge.  However, when he was discharged, he was given an undesirable character of service.  

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's records show he was inducted into the Army of the United States on 14 May 1969 and he held military occupational specialty 11B (Light Weapons Infantryman).  He was awarded the National Defense Service Medal, Armed Forces Expeditionary Medal (Korea), and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows, on:

* 30 March 1970, for wrongfully appropriating Government property valued at $8,458.00
* 23 May 1970, for wrongfully appropriating Government property valued at $2,888.00
* 11 August 1970, for failing to report to his assigned place of duty

4.  He was honorably discharged for the purpose of immediate reenlistment on 18 August 1971.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued for this period of service shows he completed 2 years, 3 months, and 5 days of net active service.

5.  He enlisted in the Regular Army on 19 August 1971.

6.  He received NJP under the provisions of Article 15, UCMJ, as follows, on:

* 11                                                                                                                                                                                                                                                                                                                                                                                                                                             February 1972, for failing to report to his assigned place of duty
* 8 March 1973, for failing to report to his assigned place of duty

7.  On 12 March 1974, he was reported absent without leave (AWOL) from his assigned unit and on 10 April 1974, he was dropped from the rolls.  

8.  In a memorandum, dated 19 March 1974, his immediate commander stated the applicant was pending a general court-martial at the time he departed AWOL.  This memorandum does not indicate what specifications the applicant was charged with.

9.  On 16 September 1974, he was apprehended by civilian authorities and returned to military control.

10.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, the DD Form 214 he was issued for this period of service shows he was discharged on 25 October 1974, 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 (separation designator (SPD) code KFS), in the rank of private with an under other than honorable conditions characterization of service.  He completed 2 years, 7 months, and 3 days of net active service during this period of service with 187 days of time lost due to AWOL.

11.  There is no evidence in his available records that shows he was ever processed for a medical discharge.

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

13.  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.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the Service.  

14.  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.

15.  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 record is void of the specific facts and circumstances surrounding his discharge.  However, the available evidence shows he was AWOL for 187 days at the time he was returned to military control, and was subsequently charged with the commission of offenses 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. 

2.  It is presumed he voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In the absence of evidence to the contrary, it is also presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  

3.  The applicant contends his discharge should be upgraded because any charges that were brought against him were never proven and he was never convicted of any charges.  However, the evidence of record confirms, and the applicant stated, that he was pending a general court-martial when he went AWOL in March 1974.  Additionally, he was allowed to be voluntarily discharged under Army Regulation 635-200, chapter 10, in lieu of a trial by court-martial.  

4.  Based on his overall record, which includes five Article 15s, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge for this period of service.

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)                                         AR20120007496





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ABCMR Record of Proceedings (cont)                                         AR20120007496



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