IN THE CASE OF:	  

		BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100012620 


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 that his under other than honorable conditions discharge be upgraded to a general, under honorable conditions or an honorable discharge.

2.  The applicant states his discharge should be upgraded because (while in the service) his prospect of proper conduct was altered due to the early stages of alcoholism.  He was able to obtain the rank of E-4 in just one year of service which shows he was a good Soldier before his drinking took over his better judgement.

3.  The applicant 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 record shows he enlisted in the Regular Army on                  28 December 1973.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11E (Armor Crewman).  

3.  His records show he went absent without leave (AWOL) from his assigned unit from 29 April 1975 to 28 May 1975 and again on 6 June 1975.  He was dropped from the rolls on 6 June 1975, apprehended by civilian authorities on     2 July 1975, and returned to military control on 3 July 1975.

4.  On 3 July 1975, at Fort Sill, OK, his command preferred court-martial charges against him for two specifications of being AWOL from on or about 29 April 1975 through 29 May 1975 and from on or about 6 June 1975 through 1 July 1975.

5.  On 8 July 1975, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

6.  In his request for discharge, he acknowledged he understood by requesting discharge and if the discharge request was approved, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and could be deprived of his rights and benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.

7.  On 16 July 1975, his immediate commander recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate and stated the applicant gave no indication of adjusting to military service, he appeared unwilling to honor his military obligation, and his retention would be futile.  On 
16 July 1975, his senior commander concurred with the recommendation.


8.  On 22 July 1975, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed he be reduced to private/E-1 and issued an Undesirable Discharge Certificate.  On 25 July 1975, he was accordingly discharged.  The DD Form 214 he was issued shows he completed a total of      1 year, 5 months, and 3 days of creditable active military service and he had 57 days of lost time.

9.  There is no evidence in the available records to indicate he was ever involved in an alcohol-related incident or that he requested assistance or sought treatment for alcohol dependency.

10.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
 
11.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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.

12.  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.

13.  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.  He contends he did not conduct himself properly because of the early stages of alcoholism.  However, there is no evidence in his available record nor did he provide any evidence to support this contention.  Additionally, he had legitimate avenues through which he could have received assistance or treatment for this situation had he chosen to use them.

2.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily requested discharge from the Army in lieu of trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 

3.  His record of service shows that he went AWOL from 29 April 1975 to 28 May 1975.  On 6 June 1975, he again went AWOL which was the basis for his voluntary discharge.

4.  Based on his record of indiscipline, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge or an honorable 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)                                         AR20100012620





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ABCMR Record of Proceedings (cont)                                         AR20100012620



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