BOARD DATE:	  1 November 2012

		DOCKET NUMBER:  AR20120008235 


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: 

   a.  an upgrade of his undesirable discharge (UD); and 

   b.  correction of the absent without leave (AWOL) period that is listed on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  

2.  The applicant states he was only AWOL from 1 April to 11 November 1969 which is only 4 months, or 120 days, and his DD Form 214 incorrectly lists his AWOL period as 31 May 1970 to 31 May 1972.  

3.  Further, the applicant states, in effect, while at home he fell off a ladder and hit his head which caused him to have a lapse of memory and he only accepted the discharge to get out of the military fast.  He also states he was AWOL from the hospital at Fort Lee, Virginia; but he was on a pass from Fort Benning, Georgia.  He claims he was advanced to private/E-2 and believes he should be considered for an upgrade of his discharge.  

4.  The applicant provides a National Personnel Records Center (NPRC) letter, dated 14 May 2012, and FB Form 2408 (Checklist for Screening Records), dated 3 May 1972 in support of his request.  



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 record shows he was inducted into the Army on 2 December 1968.  The record shows he was advanced to private/E-2 on 21 February 1968, and that was the highest rank he attained while on active duty.  

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows on 1 April 1969, while still in training, he departed AWOL.  He was dropped from the rolls (DFR) of the organization on 12 November 1969, and remained AWOL 1,107 days until returning to military control at the Personnel Control Facility at Fort Bragg, North Carolina.  Item 44 (Time Lost) contains two entries indicating the applicant was AWOL from 1 April 1969 to 11 November 1969 (225 days) and in a DFR (AWOL) status from 12 November 1969 to 11 April 1972.  

4.  On 13 April 1972, a DD Form 458 (Charge Sheet) was prepared against the applicant preferring a court-martial charge of violating Articles 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 1 April 1969 to 12 April 1972.  

5.  On 27 April 1972, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial and the maximum punishment authorized under the UCMJ, of the possible effects of a UD, and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel),
chapter 10, for the good of the service - in lieu of trial by court-martial.  The applicant elected not to submit statements in his own behalf.  

6.  The separation authority approved the applicant’s discharge request and directed the applicant be issued a UD and reduced to the lowest enlisted grade.  On 31 May 1972, the applicant was discharged accordingly.  


7.  The DD Form 214 issued to the applicant at the time shows he completed
2 months and 17 days of creditable active military service.  Item 26a (Time Lost) shows he accrued 730 days of time lost between 31 May 1970 and 31 May 1972.  

8.  On 5 December 1977, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s military record and all other available evidence, determined the applicant’s discharge was proper and equitable, and voted unanimously to deny the applicant’s request to upgrade his discharge.  

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

	a.  Chapter 10 provides 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 discharge or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  However, at the time the applicant was discharged a UD was considered appropriate.

	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.  The applicant’s request to upgrade his UD and to correct his record to show he was only AWOL from 1 April to 11 November 1969 has been carefully considered.  However, there is insufficient evidence to support this claim.    

2.  The evidence of record confirms the applicant departed AWOL on 1 April 1969 and remained away 1,107 days until returning to military control on 
11 April 1972.  As a result, absent any evidence corroborating his claim that he was only AWOL 4 months, there is an insufficient evidentiary basis to support granting this portion of the requested relief.  
3.  Given it would result in a less favorable outcome, no action will be taken to correct item 26a of the applicant's DD Form 214 to show the correct period and number of days of time lost.    

4.  The evidence further shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  As a result, there is no basis to support an upgrade of his discharge at this late date.  

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)                                         AR20120008235



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ABCMR Record of Proceedings (cont)                                         AR20120008235


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