BOARD DATE:	  31 March 2011

		DOCKET NUMBER:  AR20100023715 


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 or an honorable discharge.

2.  The applicant states English was not his primary language at the time and he had problems expressing himself.  He had personal, medical, and family problems but he could not express those problems. 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and certificate of no penal record.

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 records show he enlisted in the Regular Army for a period of 2 years on 10 November 1970 and held military occupational specialty 13A (Field Artillery Basic).  The highest rank/grade he attained during his period of military service was private first class/E-3.

3.  His records further show he served in Germany from 29 April 1971 to 19 January 1972.  He was awarded the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  On 19 January 1972, he departed his unit in an absent without leave (AWOL) status and he was dropped from Army rolls as a deserter on 16 February 1972.  He returned to military control at Fort Dix, NJ, on 20 June 1972 and he was assigned to the U.S. Army Personnel Control Facility (PFC).

5.  On 21 June 1972, court-martial charges were preferred against him for one specification of being AWOL from 19 January to 20 June 1972.

6.  On 8 September 1972, he departed the PCF in an AWOL status and he returned to military control on 4 October 1972.  He was placed in pre-trial confinement.

7.  On 5 October 1972, court-martial charges were re-preferred against him for two specifications of being AWOL from 19 January to 20 June 1972 and 8 September to 4 October 1972.  

8.  On 25 October 1972, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or an under other than honorable conditions discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

9.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or an under other than honorable conditions discharge.  He further acknowledged he understood that if the discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  
10.  On 25 October and 8 December 1972, his immediate and senior commanders recommended approval with the issuance of an Undesirable Discharge Certificate.  The immediate commander remarked the applicant had no motivation for continued service and did not respond to either counseling or rehabilitation. 

11.  On 12 December 1972, the separation authority approved his request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he be reduced to the lowest enlisted grade, and the issuance of an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 8 January 1973.

12.  His DD Form 214 shows he was discharged for the good of the service in lieu of a trial by court-martial with a UD.  This form further confirms he completed 1 year, 8 months, and 2 days of creditable active service with 179 days of lost time.

13.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

14.  Army Regulation 635-200 sets forth the policy for administrative 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 a trial by court-martial at any time after the charges have been preferred.  An under other than honorable conditions discharge is normally considered appropriate.  However, a UD was appropriate at the time the applicant was discharged.

15.  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.

16.  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 was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

2.  There is no evidence in his records that shows he encountered language challenges or difficulties or that he addressed this issue with his chain of command at the time.  Even if he did encounter difficulties, there were many other legitimate avenues he could have used to resolve the situation.  

3.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20100023715



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ABCMR Record of Proceedings (cont)                                         AR20100023715



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