IN THE CASE OF:	  

		BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100023117 


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 to at least a general discharge.

2.  The applicant states he understood that his discharge would be upgraded after 6 months.  He paid his debt in the military stockade to compensate for the charge.  He adds that his discharge was unjust because it was based on one isolated incident with no other prior incidents.  He finally adds he delayed filing this claim because he never had a reason to file, or a need for benefits or services.   

3.  The applicant provides no additional documents in support of his 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 personnel records show he enlisted in the Regular Army on 5 December 1975.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11E (Armor Crewman).  The highest grade he attained was pay grade E-2. 

3.  Between June and August 1976 the applicant received four nonjudicial punishments for:

* failure to go to his appointed place of duty
* two incidents of breaking restriction
* wrongful possession of marijuana

4.  His punishments included:

* forfeitures
* extra duties
* reduction to pay grade E-1

5.  On 21 September 1976, court-martial charges were preferred against the applicant for larceny of $6.60 and for being absent without leave from 
1 to 20 September 1976.

6.  On 23 September 1976, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Personnel Separations), chapter 10, for the good of the service.  After consulting with counsel, the applicant submitted a voluntary request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  In his request for discharge he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an Undesirable Discharge Certificate and he would be deprived of many or all Army benefits.  



7.  On 3 November 1976, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that he be issued an Undesirable Discharge Certificate.

8.  On 12 November 1976, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an Undesirable Discharge Certificate.  He had completed 11 months and 2 days of net active service.

9.  On 1 October 1979, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

10.  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 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.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.

12.  Army Regulation 635-200, paragraph 3-7b, states 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 contentions that his undesirable discharge should be upgraded to a general discharge because he believes he has paid his debt to the Army was carefully considered and found to be insufficient in merit.  There is no evidence and the applicant did not present any evidence which shows the discharge he received in 1976 was unjust and or unfair. 
2.  The applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  

3.  Therefore, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would have jeopardized his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.

4.  The ABCMR does not grant requests for the upgrade of discharges solely for the purpose of establishing eligibility for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for Department of Veterans Affairs (VA) benefits should be addressed to the VA.

5.  In view of the above, there is no basis for granting his 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)                                         AR20100023117



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100023117



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1