IN THE CASE OF:	  

		BOARD DATE:  16 October 2012

		DOCKET NUMBER:  AR20120007528 


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.

2.  The applicant states he was absent without leave (AWOL) for only a short time and did nothing else wrong.  He was injured on active duty and he was told he had nerve damage to his hand.  Following surgery he returned to his job and tried to the best he could.

3.  The applicant provides a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) 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.  The applicant enlisted in the Regular Army on 27 August 1972.  He completed training and he was awarded military occupational specialty 76Y (armor/unit supply specialist).

3.  The applicant's service medical records show he received treatment for a congenital absence of muscles in his right hand.  He underwent surgical intervention in January 1973 that resulted in some improvement of the functioning of his hand.

4.  The applicant is shown to have been AWOL on five occasions between
12 January 1973 and 6 January 1974 for a total of 85 days.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for two of his five periods of AWOL.  His last AWOL offense was for a period of 52 days for which general court-martial charges were preferred.

5.  On 12 January 1974, after consulting with counsel and being advised of his rights and options, the applicant submitted a request for 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 for an offense punishable by a bad conduct or dishonorable discharge.  He acknowledged that if the request was accepted he could receive a discharge under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.

6.  On 26 February 1974, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable discharge Certificate.  The DD Form 214 he was issued shows he completed 1 year,
2 months, and 5 days of total active service with 85 days of time lost.

7.  On 7 November 1974, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for discharge.  The applicant was afforded an ADRB personal appearance hearing on 28 October 1978 that also resulted in the denial of a discharge upgrade.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.


	a.  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 VA 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 an individual who was discharged for the good of the Service.  

	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.  While the applicant received surgical intervention for a problem with his hand, the available medical records indicate the surgery was for a congenital abnormality, not due to an injury.  Further, there is no indication that his problem with his hand was a factor in the misconduct that resulted in his discharge.

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

3.  In view of the foregoing, there is an insufficient 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)                                         AR20120007528



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ABCMR Record of Proceedings (cont)                                         AR20120007528



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