IN THE CASE OF:

		BOARD DATE:  19 September 2013

		DOCKET NUMBER:  AR20130003311 


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 to a general discharge.

2.  The applicant states, in effect, his discharge should be upgraded because his document states, "11 Years – General." 

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), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records 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 inducted on 22 June 1970.  He did not complete training and was not awarded a military occupational specialty.  
3.  His DA Form 20 (Enlisted Qualification Record) shows in item 32 (Name and Location of School) that he had had attended Burlington High School and had completed 11 years of civilian education. 

4.  On 2 November 1971, charges were preferred against the applicant for being absent without leave (AWOL) between 1 January 1970 and 21 October 1971.

5.  He consulted with counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he understood the elements of the charges against him and admitted he was guilty of at least one of the offenses which authorized a punitive discharge.  He also acknowledged he understood he might receive a discharge under other than honorable conditions (UOTHC), which would deprive him of many or all Army benefits, and he might be ineligible for veterans' benefits administered by the Veterans Administration (VA).  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued a discharge UOTHC.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will.

6.  The applicant's chain of command recommended approval of his voluntary request for discharge with the issuance of an Undesirable Discharge Certificate.  The separation authority approved the recommendation on 2 February 1972 and directed issuance of an Undesirable Discharge Certificate.

7.  He was discharged on 2 March 1972.  His DD Form 214 shows his service was characterized as Under Conditions Other Than Honorable.  Item 30 (Remarks) contains the entry, "11 Years – General."

8.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

9.  Army Regulation 635-5 (Separation Documents), in effect at the time, establishes the standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is prepared for all personnel at the time of their retirement, discharge, or release from active duty.  It states that item 30 will be used to complete entries too long for their respective blocks.  It also states to enter the highest civilian education level.

10.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.

	a.  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.  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 UOTHC is normally considered appropriate.  At the time, an Undesirable Discharge Certificate was issued.

	b.  Paragraph 3-7b states 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 remark in item 30 of his DD Form 214 pertains to his civilian education, not to his discharge.

2.  His request for a chapter 10 discharge, even after appropriate and proper consultation with legal counsel, tends to show he wished to avoid the court-martial and the punitive discharge he might have received.  His service was appropriately characterized by the length of his AWOL and the circumstances of his separation.

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

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 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)                                         AR20100027085



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ABCMR Record of Proceedings (cont)                                         AR20130003311



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