IN THE CASE OF:	  

		BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100021550 


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 under other than honorable conditions (UOTHC) discharge to an honorable (HD) discharge.

2.  The applicant states that he loves his country and served with pride and honor.  He further states that he volunteered to go into the United States Army and had an excellent service record until the day he went to Korea and complained of unjust racism in his.  The applicant continues that he checked with the company clerk to make sure he was authorized to leave on a day pass and when he returned to his unit he was told he had been absent without leave (AWOL).  He states that even if that was true it should not have been a reason to destroy his life and at most he should have been fined or given extra duty.  The applicant concludes that his discharge should be changed to 
honorable.

3.  The applicant provides no additional evidence in support of this case.

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 was inducted into the Army of the United States on 9 December 1970 for a period of 2 years.  He completed the required training and was awarded military occupational specialty (MOS) 13A10 (Field Artillery Basic).  The highest grade he attained was pay grade E-4.

3.  On 17 February 1971, nonjudicial punishment (NJP) was imposed against the applicant under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 15 February 1971 to on or about 16 February 1971.

4.  On 22 March 1971, NJP was imposed against the applicant under Article 15, UCMJ, for striking another Soldier and throwing a glass of milk in the Soldier's face.

5.  A DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating Articles 86, 89, 91, 128, and 134 of the Uniform Code of Military Justice (UCMJ) as follows:

a. Article 86, for being AWOL from 3 March 1972 through 3 March 1972;

b. Article 89, behaving with disrespect toward his superior commission officer on 3 March 1972; 

c. Article 91, disrespectful in language toward his noncommissioned officer on 3 March 1972;

d. Article 128, committed an attempted assault upon a commissioned officer on 3 March 1972; and

e. Article 134, one specification each for wrongfully communicating a threat  to another Solider, his superior commission officer and to his noncommissioned officer.
 
6.  The applicant's record is void of a separation packet containing the facts and circumstances surrounding the applicant's separation processing.  The record does contain documentation that show on 27 March 1972, the separation authority approved the applicant's request for discharge for the good of the service and directed that he be discharged from the service under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 and that he receive an Undesirable Discharge Certificate.  

7.  On 7 April 1972, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed a total of 1 year, 3 months, and 27 days of creditable active military service and that he accrued 2 day of lost time.

8.  On 14 June 1977, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge.  On 12 March 1980, the ADRB denied the applicant's second request for an upgrade of his discharge. 

9.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of the regulation stated a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, 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.  An UD was normally considered appropriate. The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

10.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.

11.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his UOTHC discharge be upgraded was carefully considered.




2.  The applicant's records does not contain his request for a chapter 10, for the good of the service in lieu of court-martial, however, evidence of records shows that the separation authority approved the applicant's request for discharge for the good of the service and directed that he be issued an Undesirable Discharge Certificate.  

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required him to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by a court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  Further, it is presumed that his discharge accurately reflects his overall record of service during this period of service. 

4.  The applicant's records reveal a disciplinary history that included AWOL, assaulting another Soldier, being disrespectful toward his superior commissioned officer, being disrespectful in language toward his noncommissioned officer and three specification of communicating a threat to injure another Solider, his superior commissioned officer and his noncommissioned officer.  Based on this 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 rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20100021550





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ABCMR Record of Proceedings (cont)                                         AR20100021550



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