BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100010080 


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 undesirable discharge to a general discharge.  He also requests change of the reason for his discharge to convenience of the government, along with the associated separation and reenlistment codes.

2.  The applicant states he was a good student in high school.  He made good grades and participated in extracurricular activities.  He made a good start in the Army, but then began to associate with a group of rebellious Soldiers and became involved with alcohol.  One night a group of guys got involved in an argument with the First Sergeant resulting in the First Sergeant being assaulted.  Although he had remained out of the argument, he was also charged with assault.  Since the authorities would not really listen to their descriptions of what had happened, they all ended up requesting discharge.

3.  After discharge, he started doing well.  He has had only three jobs since discharge, the last one for 28 years.  He lost his job when the manufacturing plant relocated.  When his wife died, he suffered from depression for a long while and lived in a homeless shelter.  However, with his daughter's help, he has made a full recovery.  His daughter is a wonderful person.  She has an advanced degree and is the executive director of a foundation.  She and her husband do a lot of volunteer work.

4.  The applicant provides copies of the following:

* his two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 1 February 1971 and
19 December 1972
* a 2009 self-authored handwritten statement
* a newspaper account of his recent involvement in amateur theater
* a 17 June 2008 certificate of completion from an alcohol and drug treatment program
* a 30 June 2009 letter from his case manager at the community based recovery ministry
* a 20 January 2009 letter from a psychologist noting that the applicant's father was an alcoholic and that the applicant was a functional alcoholic until his wife's death
* a 24 April 2009 letter from the program director stating the applicant is now employed by the community based recovery ministry
* the applicant's resume

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 was inducted into the Army of the United States on 26 January 1971.  He was discharged on 1 February 1971 for the purpose of immediate enlistment in the Regular Army.  He enlisted on 2 February 1971 and he completed training as a switchboard operator.  Notwithstanding nonjudicial punishments (NJPs) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 2 April for failing to obey a lawful order and being drunk and disorderly and on 6 August for being absent without leave (AWOL) for two days, he was advanced to the rank/grade of specialist four (SP4)/E-4 on 30 August 1971.

3.  He was stationed in Korea in December 1971 with A Company, 122d Signal Battalion, 2d Infantry Division.  On 2 April 1972 he received nonjudicial punishment under the provisions of Article 15, UCMJ for a pass violation.
4.  A DA Form 2496 (Disposition Form), Subject:  Court-Martial Charges - U.S. v. (applicant's name and two other Soldiers), dated 28 November 1972, submitted by the 2d Infantry Division Staff Judge Advocate to the Division Commander, describes the assault incident:

* Specialist Four C------, from another company in the applicant's signal battalion, had been apprehended as drunk and disorderly on 31 October and continued to act-out on 2 and 3 November
* Specialist Four C------ became rowdy while being informed by his first sergeant that he was, in fact, under arrest in the orderly room
*  when a Staff Sergeant S----- was summoned to assist, Private A---- from C------'s company and (the applicant), who were already in the orderly room, started to argue with the first sergeant
* when Staff Sergeant S----- tried to break up that exchange, Private A---- and (the applicant) attacked the staff sergeant
* the first sergeant pulled Private A---- away but Specialist Four C------ joined (the applicant) and they pushed Staff Sergeant S----- into a corner and continued to beat on him
* the CQ runner arrived, held Private A---- while the first sergeant dragged (the applicant) out of the fracas, but C------ continued to beat on the staff sergeant until the Military Police arrived

5.  On 8 November 1972, charges were preferred against the applicant for assault and battery by striking Staff Sergeant S-----.

6.  The applicant consulted with counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He acknowledged that the discharge would be characterized as other than honorable and that he would be issued an Undesirable Discharge Certificate.  He indicated that he understood that he would be deprived of many or all Army benefits and that he might be ineligible for veterans benefits administered by the Veteran's Administration (VA).  He stated that he understood that he could expect to encounter substantial prejudice in civilian life because of the discharge.

7.  At a 14 December 1972 mental status evaluation the applicant exhibited aggressive, hostile behavior.  He was fully alert and oriented.  His mood was 
depressed, his thinking clear, his thought content normal and his memory good.  He was considered mentally responsible, able to tell right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in proceedings.

8.  The chain of command recommended disapproval of his request for discharge and recommended trial by a special court-martial empowered to adjudge a bad conduct discharge.  However, the separation authority approved the applicant's request.

9.  On 19 December 1972, the applicant was discharged accordingly.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10 with a separation program number (SPN) code of 246 and a reenlistment code of RE-3.  It also shows he completed 1 year, 10 months, and 22 days of total active service.

10.  On 22 June 1977, the Army Discharge Review Board (ADRB) determined that the applicant's case did not meet the primary or secondary criteria of the DOD Special Discharge Review Program (SDRP).  On 16 April 1980, the applicant appeared with counsel before an ADRB hearing examiner.  By a
21 April 1980 directive, his request for upgrade of his discharge was denied.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

   a  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 VA 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.

   b.  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.

12.  Army Regulation 635-5-1 (Separation Program Numbers (SPN) Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be entered on the DD Form 214.  It stated, in pertinent part, that the SPN code of 246 was the appropriate code to assign to Soldiers discharged under the provisions of Army Regulation 635-200, chapter 10, by reason of discharge for the good of the service.  The SPN/RE Code Cross Reference Table, in effect at the time, stipulated that an RE-3 code would be assigned to members discharged under these provisions with an SPN code of 246.

13.  Army Regulation 635-200 further states, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 

14.  The Maximum Punishment Chart, Appendix 21 of the Manual for Courts-Martial, shows that a punitive discharge is authorized for any offense of assault and battery.

DISCUSSION AND CONCLUSIONS:

1.  The applicant reports that he made a good start in the Army, but then began to associate with a group of rebellious Soldiers and he became involved with alcohol.  One night a group of guys got involved in an argument with the First Sergeant.  The First Sergeant was assaulted.  Although he had remained out of the argument, he was charged with assault.  Since the authorities would not really listen to their descriptions of what had happened, they all ended up with requesting discharge. 

2.  The applicant's post-service period is remarkable, but it does not outweigh his overall record of misconduct or the offense that led to his discharge.

3.  In light of the evidence of record his assertion that he was merely an observer rather than a participant in the assault action is not convincing.

4.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, even after appropriate and proper consultation with military counsel, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

5.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

6.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

7.  There is also no evidence of record or documentation submitted by the applicant to support changing his narrative reason for separation or his SPN or reenlistment codes as reflected on his DD Form 214 for the period ending         19 December 1972.

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)                                         AR20100010080



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ABCMR Record of Proceedings (cont)                                         AR20100010080



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