IN THE CASE OF:	  

		BOARD DATE:	  2 July 2013

		DOCKET NUMBER:  AR20120022821 


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 a general discharge.

2.  The applicant states, in effect, that he desires to have his discharge upgraded so he can obtain much needed medical benefits.

3.  The applicant provides a letter explaining his application and a copy of his DD Form 214 (Report of Separation from Active Duty).

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 1 February 1972 for a period of 3 years and training as a unit supply specialist.  He completed his basic training at Fort Jackson, South Carolina and was transferred to Fort Lee, Virginia to undergo his advanced individual training (AIT).

3.  On 23 June 1972, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 2 June to 15 June 1972.

4.  He completed his AIT and was transferred to Fort Benning, Georgia where he completed airborne training and was transferred to Fort Bragg, North Carolina for assignment as an armorer.

5.  On 8 March 1973, NJP was imposed against him for failure to go to his place of duty.

6.  On 27 April 1973, NJP was imposed against him for being AWOL from 
30 March to 12 April 1973.  On 4 May 1973, NJP was again imposed against him for being AWOL from 30 April to 4 May 1973.

7.  On 24 August 1973, he was convicted pursuant to his plea by a special court-martial of being AWOL from 20 June to 16 July and 28 July to 8 August 1973.  He was sentenced to confinement at hard labor for 90 days and a forfeiture of $100.00 pay per month for 2 months.  However, the convening authority suspended that portion of the sentence pertaining to confinement at hard labor until 12 May 1974, unless sooner vacated.

8.  On 21 August 1974, the applicant was convicted by a special court-martial of being AWOL from 28 June to 9 July and 10 July to 5 August 1974.  He was sentenced to confinement at hard labor for 3 months and a forfeiture of $50.00 pay per month for 3 months.  He was transferred to the Army Retraining Brigade at Fort Riley, Kansas to serve his confinement.

9.  On 5 November 1974, he was transferred to Fort Hood, Texas.  On 27 March 1975 NJP was imposed against him for being AWOL from 10 March to 21 March 1975.

10.  On 22 April 1975, NJP was imposed against him for being AWOL from 
7 April to 14 April 1975.

11.  On 5 August 1975, charges were preferred against the applicant for being AWOL from 30 April to 21 July 1975.

12.  After consulting with defense counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  In his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He further declined to submit a statement or explanation in his own behalf.

13.  The appropriate authority (a major general) approved his request on           19 September 1975 and directed that the applicant be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.

14.  Accordingly, he was discharged under other than honorable conditions on    6 October 1975 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 3 years, 1 month, and 22 days of total active service and had 194 days of lost time due to AWOL.

15.  There is no indication in the available records to show he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

17.  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.  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.

18.  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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.

3.  The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given his repeated acts of misconduct, his undistinguished record of service, and the absence of mitigating circumstances at the time.  His service simply did not rise to the level of under honorable conditions.

4.  Additionally, the Board does not upgrade discharges simply for the purpose of qualifying individuals for benefits with other agencies.

5.  Accordingly, there appears to be no basis to grant the applicant’s request for an upgrade of his 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)                                         AR20120022821





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ABCMR Record of Proceedings (cont)                                         AR20120022821



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