IN THE CASE OF:	  

		BOARD DATE:	  18 June 2013

		DOCKET NUMBER:  AR20120021313 


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 undesirable discharge. 

2.  The applicant states he was offered a medical discharge in basic training.  He was also told to request an upgrade to an honorable discharge because it could be done.  He had spinal meningitis in basic training.

3.  The applicant did not provide any 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's records show he enlisted in the Regular Army on 25 October 1972.  There is no indication he was awarded a military occupational specialty.

3.  On 2 February 1973, he departed his Schofield Barracks, HI, unit - Battery B, 1st Battalion, 8th Field Artillery, in an absent without leave (AWOL) status and on 4 March 1973, he was dropped from the rolls as a deserter.  He returned to military control at Fort Bragg, NC on 8 March 1973.

4.  On 17 April 1973, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 2 February to 8 March 1973.

5.  He was reassigned to the 16th Battalion, 4th Advanced Individual Training Brigade, Fort Jackson, SC.  However, on 30 April 1973, he departed that unit in an AWOL status but he returned to military control on 9 May 1973.

6.  On 10 May 1973, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 30 April to 9 May 1973. 

7.  On 13 May 1973, he again departed his unit in an AWOL status but he returned on 16 May 1973.  

8.  On 18 May 1973, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 13 to 16 May 1973 and for breaking restriction. 

9.  On 26 May 1973, he departed his unit in an AWOL status and 24 June 1973, he was dropped from the Army rolls as a deserter.  He surrendered to civil authorities in Cheraw, SC, and returned to military control on 11 August 1973. 

10.  On 16 August 1973, his command preferred court-martial charges against him for one specification of AWOL from on or about 26 May to on or about 15 August 1973. 

11.  On 20 August 1973, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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.  In his request for discharge, he acknowledged:

	a.  he was making this request of his own free will and had not been subjected to any coercions whatsoever by any person;

	b.  he understood by requesting a discharge he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge;

	c.  he acknowledged he understood if the 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 (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State law;

	d.  he stated that under no circumstances did he desire further rehabilitation or to perform further military service; and

	e.  he elected not to submit a statement in his own behalf.

12.  On 23 August 1973, he underwent a separation physical and he was found medically qualified for separation.  

13.  On 24, 27, and 28 August 1973, his immediate, intermediate, and senior commanders agreed there was no possibility for rehabilitation in the applicant's case and all recommended approval of the discharge action with the issuance of an Undesirable Discharge Certificate. 

14.  On 30 August 1973, the separation authority approved the applicant's 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 under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On 5 September 1973, he was discharged accordingly.

15.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he was discharged for the good of the service - in lieu of a court-martial with a characterization of service of under other than honorable conditions.  This form further confirms he completed 
6 months and 3 days of creditable active service and he had lost time from/to:

* 3 February - 7 March 1973
* 30 April - 8 May 1973
* 13 May - 14 May 1973
* 26 May - 14 August 1973

16.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in part, 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, a discharge under other than honorable conditions is normally considered appropriate.

18.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  It 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.

19.  Army Regulation 635-200, 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 record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  He contends that he was offered a medical discharge in basic training but provides no corroborating evidence of what condition/illness he sustained, whether it was diagnosed and/or found to be unfitting, and whether medical officials and his chain of command made an informed and medical decision to medically separate him.  

3.  His record of military service is marred with an extensive history of misconduct that includes multiple instances of AWOL and desertion, three instances of NJP, and court-martial charges that could have adjudged a bad conduct or a dishonorable discharge.  He chose to go AWOL/desert and he chose the voluntary discharge.  He could have elected trial by a court-martial if he believed there were extenuating circumstances.  

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade to either an honorable or 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)                                         AR20120021313





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ABCMR Record of Proceedings (cont)                                         AR20120021313



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