IN THE CASE OF:	  

		BOARD DATE:	  4 June 2012

		DOCKET NUMBER:  AR20120018554 


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.

2.  The applicant states he is not sure of the date of his discharge.  However, since his discharge, he has attempted to do what is right and necessary to accomplish positive change in his life.

3.  The applicant provides no additional documentary evidence in support of his application.

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 September 1969 for a period of 3 years.  Upon completion of training, he was awarded military occupational specialty 91A (Medical Corpsman).

3.  The applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on two occasions for:

* leaving his appointed place of duty without authority on 23 June 1970
* failing to go to his appointed place of duty on 18 December 1970

4.  Court-martial charges were preferred against the applicant for being absent without leave (AWOL) from:

* 2 February 1971 to 17 May 1971
* 20 May 1971 to 27 June 1971
* 12 July 1971 to 21 March 1972

5.  On 4 April 1972, the applicant consulted with legal counsel and he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	a.  He was advised that he might be discharged under conditions other than honorable, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge.

	b.  He was also advised that he could submit any statements he desired in his own behalf.  On 4 April 1972, he submitted a statement waiving the 48-hour waiting period to decide whether to request a discharge for the good of the service.

	c.  The applicant and his counsel placed their signatures on his waiver and his request for discharge.

6.  The applicant's immediate and intermediate commanders recommended approval of the applicant's request for discharge with the issuance of an Undesirable Discharge Certificate.

7.  The applicant's military personnel records do not contain a copy of the separation authority's approval document.

8.  Headquarters, 1st Infantry Division (Mechanized), Fort Riley, KS, Special Orders Number 130, dated 9 May 1972, discharged the applicant on 10 May 1972 under the provisions of Army Regulation 635-200, chapter 10, with an Undesirable Discharge Certificate.

9.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 10 May 1972 in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and issued an Undesirable Discharge Certificate.

	a.  He completed 1 year, 6 months, and 25 days of net active service.

	b.  He had 409 days of time lost.

10.  On 10 May 1972, the applicant's separation documents were mailed to him to provide constructive notice of his discharge because he was in an AWOL status at the time.

11.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

  	a.  Chapter 10 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 trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  At the time, an undesirable discharge was normally considered appropriate.

	b.  Chapter 3, 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.  Chapter 3, 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.

13.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded because he is attempting to change his life.

2.  The evidence of record shows the applicant elected to request discharge in lieu of being court-martialed.

3.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  Therefore, considering all the facts of this case and in the absence of evidence to the contrary, the type and character of discharge directed appears to have been, and still are, appropriate.

4.  The applicant had 409 days (i.e., more than 1 year and 1 month) of time lost and he completed only about 1 year and 7 months of his 3-year enlistment obligation.

5.  Therefore, in view of the foregoing, the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general discharge.  

6.  The applicant's contentions regarding his effort to make positive change in his life was considered.  However, that effort alone is not a basis for upgrading his 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)                                         AR20120018554



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ABCMR Record of Proceedings (cont)                                         AR20120018554



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