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		IN THE CASE OF:	  

		BOARD DATE:  26 July 2012

		DOCKET NUMBER:  AR20120008796 


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 his discharge be upgraded to a general discharge (GD).

2.  The applicant states he was wrongfully advised by the military about his discharge.  The applicant further states he believes he should be given a chance for a better 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 30 July 1971.  He completed his initial training and was awarded military occupational specialty (MOS) 13A (Field Artillery Basic).  

3.  On 8 May 1972, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being absent without leave (AWOL) during the period 22 November 1971 through 17 April 1972.

4.  On 10 May 1972 the applicant, after being advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment, and being afforded the opportunity to consult with appointed counsel voluntarily requested 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.  It cannot be determined from his request if he consulted with counsel, Captain M___, or if declined the opportunity to consult with counsel.

5.  In his request for discharge, the applicant acknowledged that he had not been subjected to coercion with respect to his request for discharge, and he had been advised of the implications that were attached to it.  He confirmed his understanding that if his request for discharge were approved, he could receive an under other than honorable conditions (UOTHC) discharge.  He further stated he understood that receipt of an UOTHC discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.

6.  On 17 May 1972, the separation authority approved the applicant’s request for discharge and directed he receive an Undesirable Discharge Certificate.

7.  The DD Form 214 confirms he was discharged on 23 May 1972, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial, with an Undesirable Discharge Certificate.  It further shows, at the time of discharge, he held the rank/grade of private/E-1, and he had completed a total of 4 months and 29 days of creditable active military service with 147 days of lost time.

8.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations. 

9.  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 an individual who was discharged for the good of the Service.

10.  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 request to upgrade his discharge to GD was carefully considered.  However, it was determined that there is insufficient evidence to support this request.

2.  The applicant was discharged under the provisions of Army Regulation
635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  Discharges under the provisions of this chapter are voluntary requests for discharge 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.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  The applicant contends that he was wrongfully advised about his discharge.  While it cannot be determined from reading his request for discharge whether or not he took advantage of the opportunity to consult with counsel, he acknowledged that he had not been subjected to coercion with respect to his request for discharge, and that he had been advised of the implications that were attached to it.

4.  The applicant's record of service shows he was AWOL for 147 days in addition to the misconduct that led to his discharge.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge.

5.  In view of the foregoing, there is insufficient evidence to grant 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)                                         AR20120008796



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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ABCMR Record of Proceedings (cont)                                         AR20120008796



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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