IN THE CASE OF:	  

		BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100020632 


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, in effect, upgrade of his undesirable discharge.

2.  The applicant states he did not commit the crime and he was wrongly found guilty.

3.  The applicant provides no additional documentary evidence in support of this 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 military records show he enlisted in the Regular Army on 9 September 1971.  He completed initial entry training, was awarded the military occupational specialty of infantry indirect fire crewman, and was promoted to pay grade E-3.

3.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ):

   a.  On 26 August 1972, for being absent without leave (AWOL); and
   
   b.  On 14 November 1972, for behaving with disrespect toward a superior commissioned officer on three occasions, twice willfully disobeying a lawful order, and for being AWOL.

4.  His records show that on 5 March 1974, a special court-martial found him guilty of twice failing to go at the time prescribed to his appointed place of duty, for assaulting a person then having and in execution of military police duties by grabbing his neck, and for unlawfully striking another Soldier on the head with his fists.  The sentence was adjudged on 5 March 1974.  The sentence was approved and was ordered executed.

5.  On 19 August 1974, court-martial charges were preferred against the applicant for being AWOL during the period 15 July to 18 July 1974 and 29 July to 15 August 1974.

6.  On 12 September 1974, he voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  He was advised of the basis of his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, and the rights available to him.  He acknowledged he was making the request of his own free will and was not subjected to coercion with respect to his request for discharge and that he had been advised of the implications attached to his request.  He further acknowledged he understood that by requesting a discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.

7.  He consulted with counsel prior to completing his request for discharge and was advised fully on the matter.  He acknowledged he understood if his discharge request was approved, he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He chose not to submit a statement in his own behalf.

8.  On 1 October 1974, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 
635-200, and directed that he be issued an Undesirable Discharge Certificate.

9.  On 7 October 1974, he was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued at that time shows he completed a total of 2 years, 10 months and 1 day of active military service with 90 days of lost time.

10.  On 30 April 1981, the Army Discharge Review Board denied the applicant's request for an upgrade of his undesirable discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service.  At the time of the applicant's separation, an Undesirable Discharge Certificate was normally furnished an individual who was discharged for the good of the service.

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.  The applicant's records show he received NJP for being AWOL, for behaving with disrespect toward a superior commissioned officer, and for willfully disobeying a lawful order.  His records show he had a total of 90 days of lost time.
2.  He was also charged with being AWOL for two additional periods of time.  It is presumed his contention that he did not commit the crime and he was wrongly found guilty is referring to the reason for his discharge.  However, in his voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10 he admitted guilt to the charge or of a lesser included offense which authorized the imposition of a bad conduct or dishonorable discharge.

3.  Based on his misconduct, his service clearly does 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 an honorable or general discharge.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100020632



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100020632



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1