IN THE CASE OF:
BOARD DATE: 5 February 2013
DOCKET NUMBER: AR20120012071
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. He states he received a general discharge when he was discharged at Oakland, CA. The following year he submitted his discharge document when he applied for a job, but it was returned as an undesirable discharge.
3. He 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 25 May 1962 and he was honorably discharged on 26 April 1968 for the purpose of immediate reenlistment.
3. He reenlisted on 27 April 1968 for a period of 6 years.
4. His discharge packet is not available for review. However, his record contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged under conditions other than honorable on 3 August 1973 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial court-martial with issuance of an Undesirable Discharge Certificate. He completed 5 years, 3 months, and 7 days of active military service during the period under review.
5. His service record does not indicate he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. 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, the 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 to an individual who was discharged for the good of the service.
b. Paragraph 3-7b states 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 contends he received a general discharge when he was discharged at Oakland, CA. However, his service record is void of evidence which supports his claim.
2. The applicant's record is void of the specific facts and circumstances surrounding his discharge. It appears that he was charged with the commission of an offense(s) punishable under the Uniform Code of Military Justice 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. The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he waived his opportunity to appear before a court-martial. It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Furthermore, in the absence of evidence showing otherwise, it must be presumed that his discharge accurately reflects his overall record of service during this period.
3. Therefore, there is an insufficient evidentiary basis for upgrading the applicants 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) AR20120012071
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ABCMR Record of Proceedings (cont) AR20120012071
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