BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100022805 


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, that his undesirable discharge be upgraded.

2.  He states the character of service he was issued was too harsh, taking into account his overall service record. 

3.  He provided his DD Form 214 (Report of Separation from Active Duty) for the period ending 30 January 1976.  

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.  His military personnel record shows he initially enlisted in the Regular Army (RA) on 29 June 1972.  He was trained in military occupational specialty 51K (Plumber).  
3.  His record contains a second DD Form 214 for the period ending 2 May 1974.  This document shows he was honorably discharged for the purpose of immediate reenlistment in the RA on 3 May 1974.  

4.  A Fort Jackson Form 17 (Personal History of Accused), dated 30 December 1975, shows in Section II (Military Offenses) he received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ):

* On 14 May 1975 for disrespect to a superior noncommissioned officer 
* On 21 May 1975 for disobeying a lawful order
* On 2 June 1975 for going absent without leave (AWOL) for one day

5.  A memorandum from Commander, Company D, 548th Engineer Battalion (Construction) prepared on 6 January 1976, shows his company commander recommended he be tried by a general court-martial for violation of Article 92 and Article 134 of the UCMJ.  The applicant was advised of his eligibility to submit a request for separation under the provisions of Army Regulation 635-200 (Enlisted Separations) for the Good of the Service.  

6.  On 6 January 1976, he voluntarily requested discharge under the provisions of Chapter 10, Army Regulation 635-200 (Enlisted Personnel), for the Good of the Service.  In his application for discharge, he stated that he understood he could request discharge because charges had been preferred against him under the UCMJ, which authorized the imposition of a bad conduct or dishonorable discharge.  He further stated that he was making his request for discharge of his own free will and had not been subjected to any coercion whatsoever by any person.  

7.  Prior to completing his request for discharge, he had been given the opportunity to consult with counsel.  His record shows counsel stated he had fully advised the applicant of the nature of his rights under the UCMJ.  Although counsel had furnished him legal advice, the decision to seek discharge, was his own.

8.  The applicant also stated he understood that if his discharge were accepted, he could be discharged under other than honorable conditions and furnished an undesirable discharge certificate.  Additionally, he stated that he had been advised and understood the possible effects of an undesirable discharge.  If his request was approved, he was aware of the procedures and rights available to him.

9.  On 9 January 1976, he underwent a mental status evaluation and was determined to be within normal limits and he was cleared for any administrative or disciplinary action.  

10.  His chain of command recommended approval of his request for discharge and further recommended that he be issued a DD Form 257A (Undesirable Discharge Certificate).

11.  Accordingly, he was discharged in the rank and pay grade of Private, E-1, on 30 January 1976, under the provisions of Army Regulation 635-200, Chapter 10.  His service was characterized as, "Under Other than Honorable Conditions."

12.  On the date of his discharge, he had completed 3 years, 8 months, and 26 days, total active military service and had 5 days of lost time.

13.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized), of both DD Form 214s, shows that he was awarded the National Defense Service Medal and the Expert Marksmanship Qualification Badge, with M-16 Rifle Bar.  His contains no documentary evidence of acts of valor or achievement, which warrant special recognition.

14.  He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  On 18 October 1977, after careful consideration of his records and all other available evidence, the ADRB determined that he had been properly discharged and denied his request for an upgrade.  

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit, at any time after the charges have been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

16.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

17.  Paragraph 3-7b, of the same regulation 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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  He contends the character of service issued was too harsh, given his overall service record.  The evidence of record shows he 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.  In connection with such a discharge, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, he was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army, in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offenses under the UCMJ.  

2.  The available evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows he was fully aware of this prior to requesting discharge.  It is believed that the reason for discharge and the characterization of service are both proper and equitable.

3.  His entire record of service was reviewed and his record contains an extensive record of disciplinary actions, including NJP under Article 15 of the UCMJ.  His record contains no documentary evidence of acts of valor or achievement that would warrant special recognition and an upgrade of his undesirable discharge.

4.  The quality of his service was also considered.  However, this service was determined not to be sufficiently meritorious to warrant an upgrade of his discharge to either a general or honorable characterization of service.

5.  In view of the foregoing, there is no basis for granting his request for an upgrade of his undesirable 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)                                         AR20100022805





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ABCMR Record of Proceedings (cont)                                         AR20100022805



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