IN THE CASE OF: 

		BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120012675 


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 a general discharge.

2.  The applicant states he was having a lot of personal problems and was unable to finish his enlistment.

3.  The applicant did not provide any additional documentary 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 5 October 1972.  He completed training and he was awarded military occupational specialty 13A (Cannoneer). The highest rank/grade he attained while serving on active duty was private first class/E-3. 

3.  The applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 22 May 1973 for being absent without leave (AWOL) on the following occasions: 

* 4 May 1973 to 8 May 1973 
* 15 May 1973 to 21 May 1973

4.  On 12 October 1973, charges were preferred against the applicant for being AWOL during the period 30 July 1973 through 11 October 1973.

5.  On 17 October 1973, the applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effect of an under other than honorable conditions discharge, and of the procedures and rights available to him.  

6.  Subsequent to receiving this legal counsel, on 17 October 1973 the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  In his request for discharge, the applicant indicated he understood his discharge may be under other than honorable conditions.

7.  The applicant wrote a letter on 17 October 1973 to his commander stating that if he is discharged from the Army he is going to work with the company that he did while he was AWOL and if not he was going to continue being AWOL from the Army.

8. On 8 November 1973, the separation authority approved the applicant’s request for discharge and directed that he receive an under other than honorable conditions discharge.  On 12 November 1973, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he completed a total of 9 months and 13 days of creditable active military service.  The applicant had a total of 117 days of lost time.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  There is no evidence in the applicant’s personnel service record that shows the applicant sought assistance from his chain of command for the personal problems he mentioned in his application.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the regulation provides, in part, when 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.  At the time, an under other than other conditions 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 (emphasis added), 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 request for an upgrade of his under other than honorable conditions discharge to a general discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  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.  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.

3.  The applicant's record of service shows that he received punishment under the provisions of Article 15 of the UCMJ on two occasions. 

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable 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)                                         AR20120012675





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ABCMR Record of Proceedings (cont)                                         AR20120012675



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