BOARD DATE:	 23 April 2013 

		DOCKET NUMBER:  AR20120017227 


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, in effect, an upgrade of his undesirable discharge.

2.  The applicant states, in effect, there is no injustice, he just wants an upgrade of his discharge. 

3.  The applicant provides a Standard Form (SF) 180 (Request Pertaining to Military Records).

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 26 July 1974.  He completed training and was awarded military occupational specialty 13B (Field Artillery Crewman).  The highest rank/grade he attained while on active duty was private first class/E-3. 

3.  The available evidence shows the applicant was charged with being absent without leave (AWOL) from on or about 19 May to 19 June 1975.

4.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  The DD Form 214 (Report of Separation from Active Duty) issued to the applicant at the time shows he was discharged on 14 July 1975 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He completed 10 months and 18 days of active service during this period.  He also had 32 days of lost due to being AWOL

5.  On 6 August 1981, after careful consideration of the applicant's military records and all other available evidence, the Army Discharge Review Board determined he was properly discharged and denied his request for a change in the type and nature of his discharge.

6.  The applicant provides an SF 180 in which he requested a copy of his 
DD Form 214 (not redacted).

7.  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 3-7a 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.

	c.  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 undesirable discharge was carefully considered.

2.  The applicant's record is void of the complete facts and circumstances that led to his discharge action.  However, his record shows that he was AWOL and he accrued 32 days of lost time.  

3.  His record also contains a DD Form 214 that shows on 14 July 1975 he was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial with an undesirable discharge. 

4.  Discharges under the provisions of chapter 10, Army Regulation 635-200 require an admission of guilt to the offense(s) charged and the requests are voluntary requests for discharge in lieu of trial by court-martial.  As such, government regularity insofar as the discharge process must be presumed.  It is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, it appears the applicant's discharge reflects his overall record of military service.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

6.  The applicant will be provided an official copy of his DD Form 214. 



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)                                         AR20120017227



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ABCMR Record of Proceedings (cont)                                         AR20120017227



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