IN THE CASE OF:	  

		BOARD DATE:  15 November 2012

		DOCKET NUMBER:  AR20120009351 


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 (UD) to an honorable discharge (HD).  

2.  The applicant states he was young and experiencing problems with his girlfriend while serving and he did know how to handle his problems.  He states, since his discharge, he has been an outstanding citizen and he is requesting an upgrade of his discharge.  

3.  The applicant provides a self-authored statement 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 enlisted in the Regular Army on 28 June 1968.  He was trained in and awarded military occupational specialty (MOS) 71U (Card and Tape Writer).  

3.  The applicant’s record documents no acts of valor or significant achievement.  It does reveal a disciplinary history that includes 128 days of time lost due to being absent without leave (AWOL).  It also includes a special court-martial (SPCM) conviction on 26 January 1970, and acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 8 November 1969.

4.  On 29 June 1970, a DD Form 458 (Charge Sheet) was prepared against the applicant preferring a court-martial charge for violating Article 86 of the UCMJ by being AWOL from on or about 21 March through 23 June 1970.  

5.  On 30 June 1970, the applicant consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial that could lead to a bad conduct or dishonorable discharge, and of the maximum punishment authorized under the UCMJ.  The applicant was also fully advised of the possible effects of a UD and of the rights available to him.  Subsequent to receiving this 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.  

6.  In his request for discharge, the applicant acknowledged he understood if his request for discharge were accepted he could receive a UD.  Further, he acknowledged his understanding that he could receive a UD and as a result, could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 

7.  On 20 June 1970, the separation authority approved the applicant’s voluntary request and directed that he receive an Undesirable Discharge Certificate.  On 
20 July 1970, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed 1 year, 8 months, and 16 days of creditable active service and accrued 128 days of time lost due to being AWOL.

8.  On 23 June 1977, the Army Discharge Review Board (ADRB) considered the applicant's case under the provisions of the Department of Defense Special Discharge Review Program and determined the applicant did not meet the criteria for an upgrade under that program.  
9.  On 10 July 1980, the ADRB, after careful consideration of the applicant’s military records and all other available evidence, determined the applicant’s discharge was proper and equitable and voted to deny his request for an upgrade of his discharge.  

10.  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 (GD) 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 GD 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 that his discharge be upgraded based on his good post-service citizenship has been carefully considered.  However, while noteworthy, his post-service conduct alone is not sufficiently mitigating to support an upgrade of his discharge at this late date. 

2.  The evidence of record confirms 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 his commander, 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.  

3.  The applicant’s overall record of service was not sufficiently meritorious to support the issuance of an HD or a GD by the separation authority at the time of his final discharge and absent evidence of an error or injustice in his discharge processing it does not support an upgrade 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)                                         AR20120009351



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ABCMR Record of Proceedings (cont)                                         AR20120009351



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