BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100008111 


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.  The applicant states he felt that his discharge was unjust.  He was told by his company and battalion commanders that he would be given a general discharge.

3.  The applicant provides no evidence in support of his application 

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 record shows he enlisted in the Regular Army on
18 January 1974 for a period of 3 years.  He completed the required training and was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).  The highest rank/grade he attained was private (PVT/E2).

3.  On 10 July 1974, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for without proper authority fail to go to your appointed place of duty on 8 June 1974,
20 June 1974 and 21 June 1974.  

4.  On 11 September 1974, the applicant received NJP, for been absent without leave (AWOL) from on or about 11 July 1974 to on or about 26 August 1974.  

5.  On 22 January 1976, court-martial charges were preferred against the applicant for being AWOL from on or about 11 July 1974 until on or about
8 October 1975.  (Dates on charge sheet are incorrect, it should have read, 
10 January 1975 to 8 October 1975).

6.  The applicant subsequently consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary request (undated) for discharge under the provisions of Army Regulation 
635-200, chapter 10, for the good of the service.  In his request for discharge, he acknowledged he understood that 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 or dishonorable discharge.  He also acknowledged he understood that if his 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

7.  On 27 January 1976, the applicant’s immediate and intermediate commanders recommended approval of his request for discharge.  On 
2 February 1976, the separation authority (a lieutenant general) approved the applicant's request for discharge, directed his discharge in the rank/grade of private (PV1)/E-1, and issuance of an undesirable Discharge Certificate.

8.  On 2 March 1976, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, with an under other than honorable conditions discharge.  He completed a total of 1 year, 3 months, and 1 day of total active service with 319 days of time lost.

9.  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.

10.  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's contention that his discharge should be upgraded to a general discharge because his company and battalion commanders informed him that he would be given a general discharge were carefully considered; however, there is insufficient evidence and he did not provide any evidence that shows that the type of discharge directed was an error.

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of a trial by court-martial

3.  The evidence of record confirms the applicant's separation was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and his discharge accurately reflects his overall record of service.

4.  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)                                         AR20100008111



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)