BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100010546 


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 undesirable discharge.

2.  The applicant states:

* a group of his friends got into trouble one night
* he did not participate, but he was accused along with them
* he was a good Soldier up until that day
* he believes the punishment was too harsh

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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.  On 18 May 1970, the applicant enlisted in the Army for 3 years.  He completed training as an engineer equipment repairman.

3.  Nonjudicial punishment was imposed against the applicant on the following dates for the specified offenses:

* 15 December 1970, absent without leave (AWOL) from 2 December 1970 until 16 December 1970
* 14 March 1971, failure to report to guard post and failure to report to his place of duty
* 12 April 1971, careless discharge of a service rifle in a platoon formation
* 19 June 1971, absent from his place of duty
* 12 January 1972, failure to go to his appointed place of duty and AWOL from 2 January 1972 until 5 January 1972
* 21 July 1972, failure to go to his appointed place of duty
* 26 September 1972, AWOL from 4 September 1972 until 11 September 1972

4.  His punishments included:

* a reduction in pay grade
* forfeitures of pay
* restriction
* extra duties

5.  On 28 November 1972, the applicant was notified that charges were pending against him for conspiracy, committing larceny, and for stealing the following items belonging to other Soldiers:

* Polaroid Land Camera of a value of about $60.00
* General Electric black and white television of a value of about $119.00
* AM/FM Radio of a value of about $40.00

6.  He acknowledged receipt of the notification and on 7 December 1972, after consulting with counsel, he submitted a request for 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. 
He also elected not to submit a statement in his own behalf.

7.  In his request for discharge, the applicant acknowledged he understood the following:

* if his request for discharge were accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits
* he may be ineligible for many or all benefits administered by the Veterans Administration
* he may be deprived of his rights and benefits as a veteran under both Federal and State laws
* he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge

8.  The appropriate authority approved the request for discharge on 18 December 1972 and directed the issuance of an Undesirable Discharge Certificate.  Accordingly, on 21 December 1972 the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 2 years, 6 months, and 9 days of total active service.

9.  The available records do not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

10.  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, the 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 to an individual who was discharged for the good of the service.

11.  Paragraph 3-7a of Army Regulation 635-200 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.  Paragraph 3-7b of Army Regulation 635-200 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 was discharged in accordance with applicable laws and regulations in effect at that time.

2.  The type of discharge directed was appropriate considering all the facts of the case.

3.  His contentions regarding his lack of participation in an unidentified incident and the severity of his punishment have been noted; however, he could have elected to stand trial by court-martial if he was not guilty of the offense or offenses charged.  Additionally, nonjudicial punishment was imposed against him on seven separate occasions prior to the charges being preferred.  His contention that he was a good Soldier until "that day" is not substantiated by the evidence of record.

4.  His record shows he committed numerous acts of indiscipline while he was in the Army.  His records also show he acknowledged that he understood the effects of a less than fully honorable discharge at the time he submitted his voluntary request for discharge for the good of the service in lieu of trial by court-martial.

5.  Considering the nature of his offenses, it does not appear that the undesirable discharge he received was too harsh.

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)                                         AR20100010546



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100010546



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1