IN THE CASE OF:	  

		BOARD DATE:	    30 July 2013

		DOCKET NUMBER:  AR20120022226 


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 upgrade of his undesirable discharge for the period ending 11 February 1973 to an honorable or a general discharge.

2.  The applicant states the discharge should be upgraded because the Government felt he was unable to adjust to military life.

3.  The applicant provides no additional documentation.

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 was born on 15 November 1954.  With parental consent, he enlisted in the Regular Army on 21 March 1972.  He did not complete training.  On 12 June 1972 he was honorably discharged by reason of non-fulfillment of enlisted commitment.  He completed 2 months and 22 days of total active service.

3.  On 31 July 1972, again with parental consent, he enlisted in the Regular Army for a period of 3 years.

4.  On 18 October 1973, charges were preferred against the applicant, then a private (PV2)/E-2, for being absent without leave (AWOL) from 2 May 1973 until 17 October 1973.

5.  On 23 October 1973, the applicant consulted with counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service - in lieu of trial by court-martial.  He stated he understood the charges against him and admitted he was guilty of at least one offense for which a punitive discharge was authorized.  He acknowledged he understood he could receive a discharge under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He indicated he understood he could be deprived of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Veterans Administration.  He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge.

6.  He submitted a statement with his request wherein he stated he entered the Army twice, that he would be happy to get out of the Army on a chapter 10 discharge, and that he has four Article 15's for being AWOL.

7.  The chain of command recommended approval of the applicant's request for discharge and the Staff Judge Advocate found the case legally sufficient.  On
31 October 1973, the separation authority, a major general, approved the applicant's request for voluntary separation and directed the issuance of an Undesirable Discharge Certificate.

8.  On 2 November 1973, the applicant was discharged 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.

9.  On 2 December 1975, the Army Discharge Review Board (ADRB) considered the applicant's case including his assertion that his "acceptance" of the discharge 


was motivated by a promise that the discharge would be upgraded after 6 months.  The ADRB denied the applicant's request.

10.  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 submitted no evidence or convincing argument in support of his contention that the Government felt he could not adjust to the military.

2.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, even after appropriate and proper consultation with defense counsel, tends to show he wished to avoid a trial by court-martial and the punitive discharge that he could have received.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors.


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

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20120022226



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ABCMR Record of Proceedings (cont)                                         AR20120022226



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