IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20100000520 


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 under other than honorable discharge to a general or an honorable discharge.

2.  The applicant states the Article 15 action dated 30 March 1976 to the time of discharge of 18 May 1976 needs a complete review.  He also feels his defense counsel was inadequate.  He was completely railroaded and intimidated and was sucked into an action by SP4 D-----, who gave him the impression all was okay. 

3.  The applicant provides, in support of his application, a DD Form 214 (Report of Separation from Active Duty) and a one-page document consisting of statements by fellow Soldiers. 

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 (RA) for a period of 3 years on 
14 February 1974.  Records show the applicant was 17 years of age at the time of his enlistment.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 12B (Combat Engineer). The highest grade the applicant attained was private first class/pay grade E-2.  

3.  On 15 September 1975, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for unlawful entry and disrespect toward a superior noncommissioned officer.  The punishment consisted of reduction to the grade of private/pay grade E-2 (suspended until 
22 October 1975) and forfeiture of $75.00.

4.  On 18 February 1976, the applicant received NJP under Article 15, UCMJ, for wrongful appearance.  The punishment consisted of forfeiture of $50.00 (suspended until 26 March 1976).

5.  On 16 March 1976, the applicant received NJP under Article 15, UCMJ, for wrongful appropriation of an M151AZ half ton utility truck and failing to go to his appointed place of duty.  The punishment consisted of reduction to the grade of private/pay grade E-2, forfeiture of $201.00 pay for 1 month, and 30 days correctional custody. 

6.  While serving his correctional custody punishment, the applicant escaped from correctional custody.

7.  On 21 April 1976, charges was preferred against the applicant for escaping from custody on 19 April 1976. 

8.  On 26 April 1976, the applicant consulted with counsel and voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant’s request for discharge states he had not been subjected to coercion with respect to this request for discharge. 

    a.  He was afforded the opportunity to consult with counsel.  He was advised that he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

    b.  He was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant submitted a statement in his own behalf.  It shows that he did not like following orders and felt that he should not have been found guilty of something he did not do.  He stated if he is returned to his company he will continue to do what he wanted to do and go absent without leave (AWOL) whenever he got the chance. 

9.  The immediate commander and intermediate commanders recommended approval of the applicant’s request for discharge with a characterization of service of under other than honorable conditions.

10.  On 28 April 1976, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, Army Regulation 635-200, with a character of service of under other than honorable conditions.

11.  The applicant’s DD Form 214 shows he was discharged on 18 May 1976 in accordance with chapter 10, Army Regulation 635-200, for the good of the service with service characterized as under other than honorable conditions.  At the time he had completed 2 years, 3 months and 5 days of net active service this period and he did not have any lost time.

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

13.  In support of his request the applicant provides one document containing statements submitting by fellow Soldiers and his DD Form 214.

14.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized under Article 134 for the offense of escaping from correctional custody.

15.  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, under other than honorable conditions, would normally be furnished to an individual who was discharged for the good of the service.

    b.  Army Regulation 625-200, 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.

    c.  Army Regulation 625-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended the Article 15 action dated 30 March 1976 to the time of discharge of 18 May 1976 needs a complete review.  He also felt his defense counsel was inadequate.  He was completely railroaded and intimidated and was sucked into an action by SP4 D-----, who gave him the impression all was okay.  

2.  The applicant’s contention that his defense counsel was inadequate and he was completely railroaded and intimidated is not sufficiently supported by the evidence.  The applicant received several Article 15s with suspended punishment to give him a second chance to rehabilitate himself.  The applicant failed to adhere to the orders of superiors and did what he wanted to do.

3.  The applicant’s request for separation under the provisions of chapter 10, Army Regulation 635-200, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The evidence of record shows the applicant received 3 Article 15s during the period of service under review.  The evidence of record clearly shows that the applicant’s record of service during the period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and the applicant is not entitled to an honorable.  Moreover, the applicant’s overall quality of service during the period of service under review was not satisfactory and he is not entitled to a general under honorable conditions or 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)                                         AR20100000520





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)