IN THE CASE OF:
BOARD DATE: 5 February 2013
DOCKET NUMBER: AR20120012864
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 his undesirable discharge be upgraded to a general discharge.
2. The applicant provides no explanation.
3. The applicant provides no 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 applicants 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 applicants 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 18 April 1972 for a period of
3 years. He completed basic training.
3. Records show nonjudicial punishment (NJP) was imposed against him on
7 November 1972; however, no other details are available. The suspension of the punishment imposed on 7 November 1972 was vacated.
4. He went absent without leave (AWOL) from 11 November 1972 to
27 November 1972. He went AWOL a second time on 30 November 1972 and returned to military control on 18 January 1973. On 19 February 1973, charges were preferred against him for these periods of AWOL. Trial by special court-martial was recommended.
5. On 21 March 1973, after consulting with counsel, the applicant submitted a request for 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. In his request he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws. He also acknowledged he understood he might encounter substantial prejudice in civilian life because of
an undesirable discharge. He elected not to submit a statement in his own behalf.
6. On 6 April 1973, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.
7. On 20 April 1973, he was discharged under the provisions of Army Regulation 635-200, chapter 10, with an Undesirable Discharge Certificate. He completed
9 months and 26 days of total active service with 66 days of lost time.
8. There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within that board's 15-year statute of limitations.
9. 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, 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 an individual who was discharged for the good of the Service.
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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations. He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so.
2. The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case.
3. Since his brief record of service included 66 days of lost time and one NJP, his record of service was not satisfactory. Therefore, his record of service is insufficiently meritorious to warrant 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 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) AR20120012864
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ABCMR Record of Proceedings (cont) AR20120012864
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