IN THE CASE OF:	  

		BOARD DATE:	  31 January 2013

		DOCKET NUMBER:  AR20120011137 


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.

2.  The applicant states:

* he had a very harsh childhood marred with violence, verbal and physical abuse, and built-in anger
* this childhood shaped his personality as he grew up and affected his behavior during his military service
* he tried to overcome the challenges he had in his childhood through the use and abuse of alcohol; he became a full-fledged alcoholic at a very young age
* he ultimately decided to be absent without leave (AWOL) and rely on alcohol to escape all the negatives in his life 
* he has lived with this type of discharge for so many years; he just wants to improve his life

3.  The applicant provides a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim).

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 October 1968 for a period of 3 years.  He was trained in and held military occupational specialty 11B (Light Weapons Infantryman).

3.  He was assigned to the U.S. Army Overseas Replacement Station, Fort Lewis, WA, in preparation for reassignment to Vietnam.  However, his records show he was reported as AWOL from 13 April to 15 November 1969.

4.  On 5 January 1970, his command preferred court-martial charges against him for one specification of AWOL from 13 April to 15 November 1969.

5.  On 20 January 1970, his command preferred additional court-martial charges against him for two more specifications of AWOL, from 2 to 5 January 1970 and from 11 to 14 January 1970.

6.  On 2 February 1970, 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 the procedures and rights 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.

7.  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 were approved he could be furnished an Undesirable Discharge Certificate
* understood if such a discharge were approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the VA
* could be deprived of his rights and benefits as a veteran under both Federal and State laws

8.  With his voluntary request, he submitted a personal statement wherein he recapped his childhood and the challenges he encountered as he was growing up.  He stated, in part, "I feel the Army would be better off without me for I will never be any good as a Soldier and I feel as if I have already proved that at this time."  He specifically asked the U.S. Army to release him for his sake and the sake of its own.

9.  His intermediate and senior commanders recommended approval with the issuance of an Undesirable Discharge Certificate.  Both commanders opined that no rehabilitative efforts would return the applicant to satisfactory duty.

10.  On 17 February 1970, the separation authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation
635-200, chapter 10, and directed the applicant's reduction to the lowest enlisted grade and issuance of an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 24 February 1970.

11.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with an undesirable discharge.  He completed 8 months and 25 days of total active service and he had 274 days of lost time.

12.  On 21 October 1975 after careful consideration of the applicant's military records and all other available evidence, the Army Discharge Review Board (ADRB) determined he was properly discharged.  As such, the ADRB denied his petition for an upgrade of his discharge.

13.  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 or general discharge is authorized, an undesirable discharge was considered appropriate at the time.

	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 record shows he was 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.

2.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His character of service is appropriate based on the facts of the case and his discharge accurately reflects his overall record of service.

3.  The applicant's harsh upbringing and the challenges he faced were carefully considered.  However, his childhood and upbringing are not being contested.  His enlistment was voluntary and so was his decision to be AWOL on more than one occasion.  Likewise, the decision to request discharge instead of facing the court-martial was also voluntary.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either 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 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)                                         AR20120011137



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ABCMR Record of Proceedings (cont)                                         AR20120011137



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