BOARD DATE:	  20 June 2013

		DOCKET NUMBER:  AR20120019956 


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:

	a.  upgrade of his undesirable discharge for the period ending 25 March 1971 to an honorable discharge;

	b.  issuance of an Honorable Discharge Certificate for the period 18 October 1968 through 25 May 1970 and

	c.  issuance of an Undesirable Discharge Certificate for the period 26 May
1970 through 25 March 1971,

2.  The applicant states:

* he was never given a certificate of discharge, either an honorable or an undesirable
* he was told by a Judge Advocate General officer his discharge would be upgraded to honorable in 30 days
* he went absent without leave (AWOL) because his wife was ill
* he was given a 1-A rating, but he would not get back in the Army because he had two girls

3.  The applicant provides a copy of his DD Form 458 (Charge Sheet), dated
5 May 1971.


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 (RA) on 18 October 1968 for a period of 3 years.  He completed training and he was awarded military occupational specialty (MOS) 63B (wheel vehicle mechanic).  On 25 May 1970, he was honorably discharged for the purpose of immediate reenlistment.  He attained the rank/grade of specialist four (SP4)/E-4.  He reenlisted on 26 May 1970 for a period of 3 years.

3.  On 12 November 1970, contrary to his plea, he was convicted by a special court-martial of being AWOL from 22 July 1970 to 10 September 1970.  He was sentenced to hard labor without confinement for 2 months and a forfeiture of pay per month for 2 months.  On 16 November 1970, the convening authority approved the sentence, but suspended the punishment of hard labor without confinement for 2 months.

4.  He was again reported AWOL from 1 January 1971 to 18 January 1971 and from 26 January 1971 to 25 February 1971.  On 5 March 1971, charges were preferred against the applicant for the two AWOL offenses.

5.  On 5 March 1971, 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 25 March 1971, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant be reduced to the lowest enlisted grade and be furnished an Undesirable Discharge Certificate.

7.  On 25 March 1971, he was discharged accordingly.  He completed 2 years, 2 months, and 1 day of total active service with 97 days of time lost.

8.  On 17 July 1972, the Army Discharge Review Board denied the applicant's request for an upgrade of his undesirable discharge to an honorable discharge.

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 3-7a 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.


10.  The U.S. Army does not now have nor has it ever had a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines the characterization of service or the reason for discharge, or both, was improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was told his discharge would be automatically changed to honorable in 30 days.  However, a discharge upgrade is not automatic.

2.  He contends he went AWOL because his wife was ill.  However, there is no evidence he sought assistance from his chain of command or chaplain in resolving his family problems within established Army procedures prior to being reported AWOL.

3.  His 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 wherein he could have voiced his concerns; however, he elected not to do so.

4.  The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case.

5.  His record of service during his last enlistment included one special court-martial conviction and 97 days of time lost.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

6.  His request for an Honorable Discharge Certificate was noted.  Evidence shows he enlisted in the RA on 18 October 1968 and he was honorably discharged on 25 March 1971.  Therefore, it would be appropriate at this time to issue him an Honorable Discharge Certificate for this period of service.

7.  His request for an Undesirable Discharge Certificate was also noted.  However, Undesirable Discharge Certificates are no longer printed/issued.  Therefore, there is no basis for granting this portion of his request.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x__  ____x____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing the applicant an Honorable Discharge Certificate for the period
18 October 1968 through 25 May 1970 in the rank/grade of SP4/E-4.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his undesirable discharge to an honorable or a general discharge or issuing him an Undesirable Discharge Certificate for his period of service period ending on 25 March 1971.



      _________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)                                         AR20120019956



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ABCMR Record of Proceedings (cont)                                         AR20120019956



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