BOARD DATE: 10 March 2011
DOCKET NUMBER: AR20100022774
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 undesirable discharge be upgraded to a general discharge.
2. The applicant states he was receiving excessive harassment from his commanding officer for numerous visits to the clinic and personality conflicts.
3. The applicant provides 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 military records show he enlisted in the Regular Army on 19 September 1972. He completed initial entry training, was awarded military occupational specialty 13E (field artillery cannon operator), and was promoted to pay grade E-2.
3. He accepted nonjudicial punishment on 14 December 1973 for knowingly having in his possession an unspecified amount of marijuana.
4. On 30 October 1974, he was charged with being absent without leave (AWOL) during the period on or about 10 September to 25 October 1974.
5. On 7 November 1974, he voluntarily requested a 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 acknowledged that he was not subjected to coercion with respect to his request for discharge and he had been advised of the implications attached to it.
6. The applicant consulted with counsel and he was advised of his rights. He acknowledged having been advised of the possible effects of an undesirable discharge. 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.
7. On 19 November 1974, his commander recommended approval of an undesirable discharge.
8. His complete discharge packet is not available. However, his DD Form 214 shows that on 15 January 1975 he was discharged under other than honorable conditions and issued an Undesirable Discharge Certificate. The DD Form 214 he was issued shows he completed 2 years, 2 months, and 12 days of creditable active service with 45 days of lost time.
9. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
10. Army Regulation 635-200 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 at any time after charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.
11. 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 contends he was receiving excessive harassment from his commanding officer for numerous visits to the clinic and personality conflicts. However, he provided no evidence to support these contentions. Even if he did, he provided no explanation as to how this would excuse or justify his behavior. Therefore, his contentions are not sufficiently mitigating to upgrade a properly-issued discharge.
2. He received nonjudicial punishment for knowingly having marijuana in his possession and he was charged with being AWOL for 45 days. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory.
3. The evidence shows the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial. The proposed discharge, the type of discharge directed, and the reason for separation were appropriate considering all the facts of the case. Therefore, he was properly and equitably discharged. The records contain no indication of procedural or other errors that would tend to jeopardize his rights.
4. 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) AR20100022774
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ABCMR Record of Proceedings (cont) AR20100022774
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