IN THE CASE OF:	  

		BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120007550 


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 to general under honorable conditions and correction of the reason for his discharge to show it was based on medical reasons.

2.  The applicant states he rented an automobile for the Independence Day holiday to attend a celebration in Concord, California.  His friend was driving the vehicle and hit a retaining wall.  The applicant and the two other individuals in the vehicle were hospitalized.  The applicant spent 3 months in a Navy hospital and was assigned to a Medical Holding Company while awaiting orders.  He adds that the driver of the vehicle received a medical discharge.

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 enlisted in the Regular Army on 29 August 1972 for a period of 2 years.

3.  He received nonjudicial punishment for being absent without leave (AWOL) from 22 September to 26 October 1972.

4.  Upon completion of training, the applicant was awarded military occupational specialty 76A (Supply Clerk).

5.  Court-martial charges were preferred against the applicant for violation of Article 86 of the Uniform Code of Military Justice (UCMJ) with the specifications of:

* absenting himself from his organization from 3 May to 4 June 1973
* failing to report to his appointed place of duty on 9 June 1973

6.  The applicant consulted with legal counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	a.  He was advised that he might be discharged under other than honorable conditions, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life if he were issued an Undesirable Discharge Certificate.

	b.  He was also advised that he could submit any statements he desired in his own behalf.  The applicant elected to submit a statement with his request.  He stated, "The reason I want out is mainly I can't adjust to the life style of the Army.  I [have] been AWOL twice for a total of 63 days.  I have miss[ed] duty a few time[s].  I need to get out on account of a job [that is] ready for me now at this time.  I am a skill[ed] carpenter.  I also understand that I will receive [a] U.D. discharge also the fact it can't be change[d]."

	c.  The applicant and his counsel placed their signatures on the document on 13 June 1973.

7.  A Standard Form 88 (Report of Medical Examination) completed on 21 June 1973 shows the applicant entered "Good" in item 73 (Notes), along with his signature.  Item 74 (Summary of Defects and Diagnoses) shows the examining physician noted "no complaint."  He found the applicant qualified for separation.

8.  The applicant's commander recommended approval of the applicant's request for discharge with an Undesirable Discharge Certificate.

9.  The separation authority approved the applicant's request for discharge and directed that he receive an Undesirable Discharge Certificate.

10.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 12 September 1973 in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

	a.  He completed 10 months and 4 days of active service during this period.

	b.  He had 70 days of lost time under Title 10, U.S. Code, section 972.

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

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

	a.  Chapter 3, 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.

	b.  Chapter 10 provides that a member who 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, at the time the applicant was discharged an undesirable discharge was considered appropriate.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Chapter 4, paragraph 4-1, provides that a Soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or a punitive discharge may not be referred for or continue disability processing unless:

* the investigation ends without charges
* the officer exercising proper court-martial jurisdiction dismisses the charges
* the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to general under honorable conditions and the reason for his discharge should be corrected to show it was based on medical disability.

2.  Records show the applicant was charged under the UCMJ with Article 86 for being AWOL from 3 May to 4 June 1973.

3.  There is no evidence of record and the applicant provides insufficient evidence to show he was found medically unfit for military service.  In fact, the evidence of record shows the applicant was medically cleared for separation under the provisions of Army Regulation 635-200, chapter 10.

4.  The governing regulation states a Soldier charged with an offense under the UCMJ which could result in dismissal or a punitive discharge may not be referred for or continue disability processing.  Thus, the applicant is not entitled to a change in the reason for his discharge.

5.  The applicant's request for discharge for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was voluntary and administratively correct.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offense that led to his discharge outweighs his overall record of service during the period under review.  Considering all the facts of the case, the character of his service was appropriate and equitable.

6.  The applicant elected to request discharge in lieu of trial by court-martial, he accrued 70 days of lost time (i.e., 2 months and 10 days), and he completed about 10 months of his 2-year enlistment obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to a general discharge.

7.  In view of the foregoing, there is no basis for granting the 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 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)                                         AR20120007550



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ABCMR Record of Proceedings (cont)                                         AR20120007550



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