BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100023752 


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 undesirable discharge to a general discharge.

2.  The applicant states he was having marital problems during his second enlistment and that he informed his superiors, but did not receive any assistance.  Things continued to escalate; however, he received no assistance.  Additionally, he states he received an honorable discharge for his first period of service and he was performing at the same level until he experienced personal problems.  He asks that his entire record be considered rather than just his period of difficulty.

3.  The applicant provides copies of DD Forms 214 (Report of Separation from Active Duty) for two periods of service, his initial DD Form 4 (Enlistment Contract), his DA Form 20 (Enlisted Qualification Record), and his DA Form 2-1 (Personnel Qualification 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 military records show he enlisted in the Regular Army (RA) on 18 July 1972.  He held military occupational specialty MOS 94D (Baking Specialist).  He was honorably released from active duty on 17 July 1974.  

3.  After a short break in service, on 8 August 1974, he reentered the RA for a period of 3 years in MOS 94D.  The highest pay grade he held was pay grade
E-3.

4.  Records show he accepted nonjudicial punishment (NJP) on eight occasions for:

	a.  willfully damaging by breaking and entering military property and unlawfully entering a dining facility;

	b.  assaulting a noncommissioned officer by striking him about the head and body with his hands and the next day assaulting a person in the execution of military police duties, by striking him in the face;

	c.  willfully disobeying a lawful order and for being drunk and disorderly in the Post Bakery;

	d.  being absent without leave (AWOL) on four occasions;

	e.  failing to go to his appointed place of duty; and

	f.  being drunk in public.

5.  His discharge packet is not contained in his records.  However, his record contains a DD Form 214 that shows, on 10 August 1976, he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for the good of the service - in lieu of court-martial, with a DD Form 258A (Undesirable Discharge Certificate).  The DD Form 214 he was issued shows he completed a total of 3 years, 11 months, and 
25 days of total active service with 8 days of lost time.

6.  In connection with such a discharge, the applicant would have been charged with the commission of an offense punishable with a punitive discharge.  Procedurally, the applicant would have been 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, the applicant would have admitted guilt to the stipulated or lesser included offense(s) under the UCMJ.  He would also have acknowledged that he had been advised and understood the possible effects of a discharge under other than honorable conditions; and that, as a result of the issuance of such a discharge he would be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veterans Administration; and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.  He would have acknowledged that he understood he may expect to encounter substantial prejudice in civilian life if he received an undesirable discharge.

7.  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.

8.  Army Regulation 635-200 (Personnel Separations) 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 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.  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.

9.  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 discharge with a characterization of service of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the applicant's record and he has not submitted any substantive evidence showing his superiors failed to assist him with his alleged marital problems.  He provided no explanation as to how his alleged personal problems excuses or justifies his personal behavior.

2.  The applicant's records show he received NJP on eight occasions for offenses including failing to go to his appointed place of duty, willfully damaging and entering military property, assaulting a noncommissioned officer, assaulting a person in the execution of military police duties, willfully disobeying a lawful order, being drunk and disorderly, being AWOL on four occasions, and for being drunk in public.  These offenses began shortly after the onset of his second enlistment.

3.  In order to be discharged under chapter 10 he would have voluntarily requested discharge in lieu of a trial by court-martial.  His reason for separation and his characterization of service were appropriate considering all the facts of the case.  

4.  In the absence of evidence to the contrary, 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.

5.  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)                                         AR20100023752



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ABCMR Record of Proceedings (cont)                                         AR20100023752



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