IN THE CASE OF:	  

		BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20120022507 


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 to a general discharge.

2.  The applicant states at the time of his discharge he only had an 8th grade education.  He also did not understand most of the information.  He thought he would be issued a general discharge.  He has been discharged for 41 years and he is now a better man than he was back then.  He thought he had an honorable discharge.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 18 August 1970.  At the time of his enlistment, his highest civilian education level was 8 years.  He completed training and was awarded military occupational specialty 94B (Cook).  He was advanced to pay grade E-2 on 1 December 1970.

3.  On 7 May 1971, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty on 5 May 1971.  

4.  On 22 July 1971, he was reported absent without leave (AWOL) and on 19 August 1971, he was dropped from the rolls of his organization.  He was apprehended and returned to military control on 8 February 1972.

5.  A DD Form 458 (Charge Sheet), dated 18 February 1972, was issued by the Commander, U.S. Army Personnel Control Facility, Fort Campbell, KY.  The applicant was charged with one specification of being AWOL from 22 July 1971 through 8 February 1972.  

6.  On 24 February 1972, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trial by court-martial.  He acknowledged he could be discharged under other than honorable conditions and furnished an undesirable discharge certificate and the results of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.    

7.  On 29 February 1972, the Commander, U.S. Army Personnel Control Facility, stated after carefully reviewing the applicant’s records in conjunction with the applicant’s attitude toward honorable service the best interest of the U.S. Army would be served by approval of the request.

8.  On 1 March 1972, the appropriate separation authority approved the applicant’s request under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate and reduction to pay grade E-1.

9.  On 6 March 1972, he was discharged accordingly.  He completed 11 months and 28 days of net active service with 222 days of time lost.

10.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 10 that a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a that a honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b that a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request and contention for an upgrade of his discharge was carefully considered.  However, the evidence of record shows upon return from a lengthy period of AWOL and after consulting with counsel, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  He also acknowledged he be furnished an undesirable discharge.  As a result, on 9 September 1985, he was discharged accordingly.

2.  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.

3.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable 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)                                         AR20120022507





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ABCMR Record of Proceedings (cont)                                         AR20120022507



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