BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120009822 


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 under other than honorable conditions discharge to an honorable or a general discharge.

2.  The applicant states there was medical information that was not available before his separation:

	a.  His grandmother was hospitalized in 1956 and again in 1976.  After a lengthy hospitalization, she was discharged from the hospital with leg braces and a walker.  She recovered and later became his legal guardian.  He was on orders for Germany and sought counseling regarding his options.  He requested a deletion, deferment, swap, a different duty station, and a hardship discharge.  All his attempts failed on the grounds that he did not meet the criteria.  He went to McGuire Air Force Base the day before his flight and he spoke with a chaplain.  He was advised to proceed with his assignment and see a chaplain there.  At the time, he was 20 years of age and he did not make the best decision.  His career was just starting and his grandmother was ill.  With a very heavy heart and tears in his eyes, he decided to take the bus home.

	b.  Since his discharge, he worked for an electronic company and he was a project manager assigned to a defense contractor account.  He attended conferences and he has been involved with the military one way or another.  He is also a president of a nonprofit company that has recently partnered with schools and learning centers. 

3.  The applicant provides his DD Form 214 (Report of Separation and Record of Service).

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 was born on 8 August 1956.  He enlisted in the Regular Army on 6 November 1974 at the age of 18 years and 3 months.  He held military occupational specialty 12B (Combat Engineer).

3.  He served at Fort Belvoir, VA, and he attained the rank/grade of specialist four (SP4)/E-4.  He was pending reassignment to Germany with a reporting date of 6 November 1976.  It appears he failed to report.

4.  His DA Form 2-1 (Personnel Qualification Record) shows on:

* 28 October 1976, he departed Fort Belvoir in a casual status en route to Germany
* 6 November 1976, he was reported in an absent without leave (AWOL) status
* 5 December 1976, he was dropped from the rolls of the Army as a deserter
* 17 December 1976, he returned to military control

5.  The complete facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains:

	a.  A memorandum, dated 29 December 1976, addressed to the Commander, U.S. Army Personnel Control Facility, Fort Dix, NJ.  It shows that on that date he consulted with legal counsel and he was advised of the basis for the 

contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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.  In his request for discharge, he acknowledged he:

* was making the request of his own free will and he had not been subjected to any coercion
* understood that if the discharge request was approved he could be furnished an Undesirable Discharge Certificate
* understood if such a discharge was approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the Veterans Administration (VA)
* could be deprived of his rights and benefits as a veteran under both Federal and State laws
* elected not to submit a statement in his own behalf

	b.  Orders 19-203, issued by Headquarters, U.S. Army Training Center, Fort Dix, dated 19 January 1977, ordering his discharge effective the same date.

	c.  A DD Form 214 that shows he was discharged on 19 January 1977 under the provisions of Army Regulation 635-200, chapter 10, with a separation program designator (SPD) code of JFS (Administrative discharge conduct triable by court-martial), with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  He completed 2 years, 1 month, and 3 days of total active service with 41 days of time lost.

6.  On 22 March 1979, the Army Discharge Review Board, after careful consideration of the applicant's military records and all other available evidence, determined he was properly discharged, and denied his request for a change in the type and nature of his discharge.

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

	a.  Chapter 10 of that regulation provides, in pertinent part, 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 or general discharge is authorized, an under other than honorable conditions discharge is normally 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.

	b.  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 record shows the applicant appears to have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. 

2.  Although his record is void of all of the specific facts and circumstances that led to his discharge, it contains a DD Form 214 that shows he was discharged on
19 January 1977 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of a court-martial.  It is presumed all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  Further, it is presumed his discharge accurately reflects his overall record of service during his last enlistment. 

3.  The applicant was over 18 years of age when he enlisted in the Regular Army and he was over 20 years of age when he went AWOL.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligation or that his AWOL was the result of his age.

4.  There is no evidence of record and he did not provide any evidence that supports his contention that the reason for his AWOL was his ill grandmother.  Likewise, there is no evidence of record corroborating his contention that he requested a deletion, deferment, swap, a different duty station, or a hardship discharge or that his attempts failed on the grounds he did not meet the criteria.  He willingly chose to go AWOL and he willingly elected the discharge in lieu of trial by a court-martial.

5.  Based on his record of indiscipline his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.

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)                                         AR20120009822



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ABCMR Record of Proceedings (cont)                                         AR20120009822



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