IN THE CASE OF:	  

		BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20100007093 


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 conditions discharge to a general discharge.

2.  He states he served his country honorably and his service was exceptional.  He was airborne and he was on his way to Ranger School when his wife asked for a divorce.  At that time, he requested leave and his request was denied.  He went absent without leave (AWOL) and caught a civilian charge and he was imprisoned.  When he returned to military control he was given an under other than honorable conditions discharge.  He is currently imprisoned, but it has nothing to do with his request.  He is trying to make some things right in his life.

3.  He provides 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's military records show he enlisted in the Regular Army, in pay grade E-1, on 31 October 1974, for 3 years.  He completed training and he was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).  He was advanced to pay grade E-2 on 30 February 1975.

3.  On 21 April 1975, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully possessing one-half ounce of marijuana on 18 April 1975.  His punishment included a reduction to pay grade E-1, a forfeiture of $75.00 pay, and 10 days of restriction and extra duty.  He did not appeal the punishment.

4.  On 20 July 1976, the applicant's commander was notified of the applicant's arrest/confinement by civil authorities on 29 December 1975.  

5.  On 6 December 1976, a DD Form 458 (Charge Sheet) was prepared by the Commander, Special Processing Company, Fort Knox, KY.  He was charged with five specifications of being AWOL from 28 to 30 May 1975, 9 to 26 June 1975, 29 June 1975 to 15 July 1975, 29 July 1975 to 8 January 1976, and from
8 January 1976 to 4 November 1976.

6.  On 9 December 1976, after consulting with counsel, he voluntarily 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 court-martial.  In doing so, he stated he had not been subjected to coercion with respect to his request for discharge and that he had been advised of the implications that were attached to it.  He acknowledged that he might be discharged under other than honorable conditions and the possible effect of such a discharge.  He also acknowledged that he might be ineligible for many or all benefits administered by the Veterans Administration (VA) and other Federal agencies.  He elected to submit a statement in his own behalf.  

7.  In his statement, he stated, in effect, that he got married young, had a child, and he was using drugs.  He and his wife both decided he could make it in the Army.  He enlisted, he was doing his job and liking it, and then his wife informed him of her plans for a divorce.  He went all to pieces and started using drugs again.  His commander tried to help, but it was no good.  He went AWOL and tried to talk to his wife.  She would not listen, he was high all the time, and he just didn’t care anymore.  He stole a car, got busted, and was taken to jail.  He was 

sentenced to 1 to 2 years for grand theft auto and forgery.  If he had another chance he would make a "hell of a trooper."  If he is discharged he would accept the decision and have no hard feelings.

8.  On 9 December 1976, his commander and intermediate commander recommended approval of the applicant's request with issuance of an Undesirable Discharge Certificate.

9.  On 20 December 1976, the appropriate separation authority approved the applicant's request for discharge for the good of the service and directed the issuance of an Undesirable Discharge Certificate.

10.  He was subsequently discharged in pay grade E-1 on 2 February 1977, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, with an Under Other Than Honorable Conditions Discharge Certificate.  He was credited with completing 10 months and 5 days of net active service and 516 days of time lost.

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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 under other than honorable conditions is normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7b, specified a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

2.  His contentions were considered; however, they do not support an upgrade of his discharge.  His entire record of service was reviewed and based on that review, the reason for discharge was determined to be proper and equitable.  Further, it has been determined that the quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his discharge to a general discharge.

3.  The evidence also shows during his period of service, the highest grade he held was pay grade E-2.  He was punished under Article 15 for wrongfully possessing marijuana and he was reduced to pay grade E-1.  Court-martial action was pending against him for five specifications of AWOL totaling 516 days of time lost.  He voluntarily requested discharge in lieu of facing a court-martial and instead waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged and/or wrongfully discharged.  His request for discharge was approved and it was directed that he receive an under other than honorable conditions discharge.

4.  The evidence of record confirms his discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons were appropriate considering all the facts of the case.

5.  In view of the foregoing, there is no basis for granting his request.

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)                                         AR20100007093



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100007093


   
2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1