IN THE CASE OF:	  

		BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100008125 


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 his undesirable discharge be upgraded to an honorable discharge.  

2.  The applicant states he could not properly adjust to the military due to a hardship.  He was told his discharge would be upgraded after 6 months, but he has not been able to get his discharge upgraded.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 enlisted in the Regular Army on 16 February 1972 for a period of 3 years.  

3.  On 3 January 1973, and on 2 May 1973, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for missing movement with the 541st Engineer Company and for leaving the scene of an accident without making his identity known.  

4.  On 24 July 1973, the applicant was convicted by a special court-martial of violating a lawful general regulation by having in his possession marijuana, violating a lawful general regulation by having in his possession .14 grams more or less of heroin, disobeying a lawful command, attempting to destroy evidence, breaking restriction, and stealing the property of a private, E-2.  He was sentenced to a forfeiture of $204.00 pay for 6 months and confinement at hard labor for 6 months.  

5.  On 12 October 1973, charges were preferred against the applicant for stealing an 8-track tape player, eight tapes, and a container of Librium capsules, of a value of about $61.00, the property of a specialist four.  

6.  The applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life.  He also acknowledged that he might be ineligible for many or all Army benefits administered by the Veterans Administration (VA) if an undesirable discharge was issued.  He did not submit statements in his own behalf.

7.  The separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 with the issuance of an Undesirable Discharge Certificate.

8.  On 25 October 1973, the applicant was discharged from active duty under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an undesirable discharge.  He had completed 1 year, 5 months, and 2 months of active military service with 98 days of lost time due to being in confinement.  

9.  On 15 May 1975, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.


10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

11.  Army Regulation 635-200, 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.  

12.  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 he could not properly adjust to the military due to hardship; however, the available evidence does not substantiate his claim.  

2.  The applicant also contends he was told that his discharge would be upgraded after 6 months.  However, the U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change.  Changes may be warranted if it is determined that the characterization of service or the reason for discharge or both are improper or inequitable.

3.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  No evidence of record indicates the request was made under coercion or duress.

4.  The applicant’s service records show he received two Article 15s and one special court-martial.  His DD Form 214 shows 98 days of lost time due to confinement.  As a result, his service record was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for an upgrade to an honorable or general discharge.

5.  The evidence of record does not indicate the actions taken in his case were in error or unjust, therefore, there is no basis for granting the applicant's request for 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)                                         AR20100008125



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ABCMR Record of Proceedings (cont)                                         AR20100008125



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