BOARD DATE:	  23 May 2013

		DOCKET NUMBER:  AR20120019585 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states his discharge was inequitable because it was based on one isolated incident in a 20-month period.  His discharge was based on the overuse of accrued leave.  His child suffered from an asthmatic condition.  He failed to report to duty and pass along his child’s vital health information.  The applicant states he does not believe his chain of command permitted him to properly look after his family.  However, his conduct was desirable until this isolated incident.

3.  The applicant provides no additional 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 13 August 1968 and held military occupational specialty 91A (Medical Corpsman).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  His DA Form 20 (Enlisted Qualification Record) and a series of DA Forms 188 (Extract Copy of Morning Report) in his military record show his duty status changed on:

* 11 May 1969, from present for duty (PDY) to absent without leave (AWOL)
* 9 June 1969, from AWOL to dropped from the rolls (DFR)
* 2 September 1969, from DFR to PDY
* 10 September 1969, from PDY to AWOL
* 17 September 1969, from AWOL to DFR
* 29 April 1970, from DFR to PDY
* 8 July 1970, from PDY to AWOL (through 16 July 1970)

4.  His record contains a Standard Form (SF) 93 (Report of Medical History), and an SF 88 (Report of Medical Examination), dated 5 May 1970, which show he was medically qualified for military service with no medical limitations.

5.  His record contains a charge sheet, dated 6 May 1970, which shows court-martial charges were preferred against him for two specifications of being AWOL from on or about:

* 11 May to 2 September 1969
* 10 September 1969 to 28 April 1970

6.  On 15 June 1970, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel and without coercion, he voluntarily requested 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.  

7.  In this request for discharge he acknowledged that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or a dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of his rights and benefits as a veteran under both Federal and State law, and that he could expect to encounter substantial prejudice in civilian life if he received an undesirable discharge.

8.  On 2 July 1970, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an Undesirable Discharge Certificate and reduction to private/E-1.  Accordingly, he was discharged on 16 July 1970.

9.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 11 months and 25 days of creditable active military service with 353 days of lost time.

10.  On 24 November 1980, the Army Discharge Review Board, after careful consideration of his military records and all other available evidence determined he was properly discharged and denied his request for an upgrade of his discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu 
of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized an undesirable discharge was normally considered appropriate at the time.  

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that having been advised by legal counsel he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

2.  There is no evidence that shows he addressed the issue of his sick child with his chain of command.  His chain of command could have taken steps to assist his family if he had been forthright about his concerns.  Instead, it appears he took matters into his own hands and went AWOL.  

3.  During his period of service he went AWOL on three occasions for a total of 353 days, which was more than half of the time that he served. 

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting an honorable or a general discharge in this case.

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)                                         AR20120019585



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ABCMR Record of Proceedings (cont)                                         AR20120019585



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