IN THE CASE OF:	  

		BOARD DATE:	  22 January 2013

		DOCKET NUMBER:  AR20120011564 


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 discharge.

2.  The applicant states he feels his commanding officer at the time had an unjust personal vendetta against him.

3.  The applicant provides:

* Undesirable Discharge Certificate
* statement in lieu of notice of discharge

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 records show he enlisted in the Regular Army for 3 years on 31 August 1972.  He completed basic combat training at Fort Polk, LA, and he was reassigned to Fort Riley, KS, for advanced individual training.

3.  On 27 November 1972, he departed his training unit without authority and was reported as absent without leave (AWOL).  He returned to training on 17 December 1972.

4.  On 19 December 1972, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 27 November to on or about 18 December 1972.

5.  On 22 December 1972, he completed training and he was awarded military occupational specialty 63B (Wheel Vehicle Mechanic).  He was also awarded or authorized the:

* National Defense Service Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar

6.  On 9 April 1973, he was investigated by agents of the U.S. Army Criminal Investigation Command for possession of marijuana and lysergic acid diethylamide (better known as LSD).

7.  On 12 April 1973, he was again AWOL, but he returned to duty on 22 April 1973.

8.  On 30 April 1973, court-martial charges were preferred against him for one specification of being AWOL from on or about 12 April 1973 to on or about 23 April 1973 and one specification of wrongfully possessing marijuana.

9.  On 11 May 1973, the applicant consulted with legal counsel who advised him 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 UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

10.  In his request for discharge, the applicant acknowledged:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever
* he understood that if the discharge request were approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate
* he acknowledged he understood that he 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
* he acknowledged he understood he could expect to encounter substantial prejudice in civilian life
* he elected not to submit a statement in his own behalf

11.  Between 24 May and 5 June 1973, his immediate, intermediate, and senior commanders recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.

12.  On 13 June 1973, he again was AWOL.

13.  On 26 June 1973, the separation authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation 
635-200, chapter 10, in lieu of trial by court-martial consistent with the applicant's chain of command's recommendations and directed his reduction to the lowest enlisted grade, if applicable, and issuance of an Undesirable Discharge Certificate.  He was discharged accordingly on 12 July 1973.

14.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial with an Undesirable Discharge Certificate.  He completed 8 months 10 days of active service during this period and he had 62 days of lost time.

15.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 is normally considered appropriate.

	a.  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 records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 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.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  The available evidence clearly shows a period of service marred with misconduct that began in training and continued throughout his military service.  He had three instances of AWOL, one instance of NJP, and court-martial charges.

3.  He elected to be AWOL on more than one occasion.  Also, upon preferring of court-martial charges against him, he consulted with counsel.  His options were to  face trial by court-martial that could have adjudged a dishonorable or a bad conduct discharge or submit a voluntary request for discharge.  He voluntarily chose discharge.  There is no evidence of a vendetta in the record and the applicant provides none to support this contention.

4.  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.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20120011564



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ABCMR Record of Proceedings (cont)                                         AR20120011564



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