IN THE CASE OF:	  

		BOARD DATE:	    15 January 2013

		DOCKET NUMBER:  AR20120012332 


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 "reactivation" of his undesirable discharge, or to upgrade it to general, under honorable conditions.

2.  The applicant states he enlisted in the Regular Army for the purpose of defending his country and could only do that from within the United States.  He could not do this on the other side of the world.  He contends that when he was discharged, there were only two people in the room, The Adjutant General (TAG) and him.  TAG took the matter of his discharge in his own hand without any counsel which meant that whatever anyone else said did not matter to him.  After he got his discharge, he went to the Pentagon for a hearing where he was told he could get his discharge upgraded, but it never happened.  He served his country here where he was best suited for the job.  The applicant also states that he is about to retire and wants his discharge corrected so he can receive military benefits which he deserves.

3.  The applicant provides no additional documentation.

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.  On 24 July 1968, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 36K (Field Wireman).  He was subsequently assigned for duty at Fort George Meade, Maryland.

3.  The applicant accepted the following nonjudicial punishments (NJPs) and special court-martial:

	a.  14 November 1968: NJP for dereliction of duty;

	b.  13 December 1968: NJP for wrongful appropriation of property;

	c.  29 January 1970: special court-martial for being absent without leave (AWOL) from on or about 6 February 1969 to 5 January 1970;

	d.  9 July 1970: NJP for failure to go to his appointed place of duty;

	e.  29 July 1970: NJP for failure to report for extra duty on four occasions; and

	f.  11 August 1970: NJP for speeding and failing to have possession of his operator's permit.

4.  On 29 March 1971, charges were preferred under the Uniform Code of Military Justice (UCMJ) for being AWOL from the Overseas Replacement Station, Fort Lewis, Washington during the period 5 September 1970 to on or about 19 March 1971.

5.  On 1 April 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.

6.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, and that he could receive an undesirable discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.

7.  In the applicant's statement in support of his request for discharge he said he had enlisted to get away from his stepfather who had tried to rule over him.  He left and turned to drugs for happiness.  He stated he was a drug fiend and that if the Army kept messing with his mind he would go AWOL again and again until he got his discharge.

8.  On 12 May 1971, the separation authority approved the applicant’s request for discharge and directed that he be issued DD Form 258A (Undesirable Discharge Certificate).  On 14 May 1971, the applicant was discharged accordingly.  He had completed 1 year, 7 months, and 15 days of creditable active duty service and had 426 days of lost time.

9.  On 18 November 1980, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days, is a punitive discharge and confinement for 
1 year.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

	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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

2.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  His lengthy period of lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

3.  The applicant's desire to obtain veteran benefits is not a justifiable basis to upgrade his discharge.  Furthermore, his argument that he enlisted to serve his country is contrary to his statement at the time of his discharge saying he only wanted to get away from his stepfather and was a drug fiend.

4.  There is no evidence of record, and the applicant has not provided any documentation showing a proper authority had promised him an upgrade of his discharge.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20120012332





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ABCMR Record of Proceedings (cont)                                         AR20120012332



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