IN THE CASE OF:	

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20100006931 


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. 

2.  The applicant states that he had low test scores when he entered the military and suffered from alcohol problems during his military service.  

3.  The applicant did not provide any additional documentary evidence.

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's records show he enlisted in the Regular Army for a period of 2 years on 17 October 1974 and proceeded to Fort Ord, CA, for completion of basic combat training.
3.  His records also show that while in training, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), as follows:

* on 4 November 1974, for disobeying a lawful order.  His punishment consisted of a forfeiture of $50.00 pay and 7 days of extra duty and restriction

* on 3 December 1974, for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of $50.00 pay (suspended for 30 days) and 7 days of restriction

4.  On 5 January 1975, he departed his training unit in an absent without leave (AWOL) status.  However, he returned on 6 January 1975 and he was subsequently reassigned to a new training unit at Fort Ord.

5.  His records also show that while in his new unit, he accepted NJP under the provisions of Article 15, UCMJ, as follows:

* on 10 January 1975, for being AWOL from on or about 5 January 1975 to on or about 6 January 1975.  His punishment consisted of a forfeiture of $40.00 pay and 7 days of extra duty and restriction

* on 26 February 1975, for again being AWOL from on or about 2 February 1975 to on or about 19 February 1975.  His punishment consisted of a forfeiture of $90.00 pay and 14 days of restriction and extra duty

* on 3 March 1975, for being derelict in the performance of his duties as a fire guard.  His punishment consisted of a forfeiture of $80.00 pay and 14 days of restriction and extra duty

6.  On 3 March 1975, he again departed his training unit in an AWOL status and he was subsequently dropped from the rolls (DFR) of the Army.  He was apprehended by civil authorities and returned to military control on 7 May 1975.

7.  On 25 June 1975, court-martial charges were preferred against the applicant for one specification of being AWOL from on or about 3 March 1975 to on or about 7 May 1975.

8.  On 3 July 1975, additional court-martial charges were preferred against him for one specification of assaulting another Soldier by striking at him with a butcher knife.

9.  On 13 July 1975, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

10.  In his request for discharge, he indicated that he understood by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge.  He also indicated that he was making this request of his own free will and he had not been subjected to any coercion and he indicated that he had been advised of the implications that were attached to his request.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He submitted a statement in his own behalf in which he stated that he went home on the weekend and did not return because he wanted to request a discharge from the Army.  He also stated that he had the chance to be straight but refused to do so, and that he fully realized the consequences, nonetheless he wished to make application for a discharge for the good of the service.

11.  On 7, 11, and 14 August 1975, his immediate, intermediate, and senior commanders recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.

12.  On 15 August 1975, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed that he receive an Undesirable Discharge Certificate, with reduction to the lowest enlisted grade.  On 27 August 1975, the applicant was accordingly discharged.

13.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged for the good of the service - in lieu of a court-martial with an Undesirable Discharge Certificate.  This form further confirms he completed a total of 7 months and 18 days of total active service and he had
83 days of time lost.

14.  On 29 November 1988, the Army Discharge Review Board (ADRB) denied the applicant's petition for an upgrade of his discharge.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

16.  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.  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 contends that his discharge should be upgraded.

2.  The applicant’s records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  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.  The applicant’s records reveal a period of military service marred by various incidents of misconduct that started during basic combat training that included offenses of being AWOL, assault of another Soldier, disobeying a lawful order, and failing to be at his place of duty.  Nowhere in his records does it show he had an alcohol problem or that his low test scores contributed to his extensive misconduct.
4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to 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)                                         AR20100006931



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)