IN THE CASE OF:	  

		BOARD DATE:	  31 March 2011

		DOCKET NUMBER:  AR20100024787 


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, essentially, in a self-authored statement that he did not know private (PVT) G___ was going to break into another Soldier’s room to steal items from the room and that this led to his discharge from the Army.  He states he has no felony charges and he has been a law-abiding citizen. 

3.  The applicant provides a self-authored letter and his DD Form 214 (Report of Separation from Active Duty) 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.  On 24 August 1973, at age 19, the applicant enlisted in the Regular Army (RA) for a period of 2 years.  The applicant completed basic training and he was in the process of being eliminated from advanced individual training due to academic failure and a lack of motivation prior to the circumstance surrounding his discharge action.  The highest rank the applicant attained was private/pay grade E-2.

3.  On 18 January 1974, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty.  

4.  On 31 January 1974, the applicant received a second NJP under Article 15, UCMJ for two specifications of disobeying a noncommissioned officer.  

5.  On 1 March 1974, charges were preferred against the applicant for one specification of unlawful entering and two specifications of breaking arrest.

6.  On 15 March 1974, the applicant consulted with counsel and voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 
635-200 (Personnel Separation - Enlisted Personnel), for the good of the service. The applicant acknowledged that he had not been subjected to coercion with respect to his request for discharge.

    a.  He was afforded the opportunity to consult with counsel.  He was advised that he may be discharged under conditions other than honorable, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge Undesirable Discharge Certificate.

    b.  He was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant did not submit a statement in his own behalf.  

7.  The immediate commander and intermediate commanders recommended approval of the applicant’s request for discharge and recommended that he be issued of an undesirable discharge.




8.  On 1 April 1974, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, Army Regulation 635-200, with the issuance of an Undesirable Discharge Certificate.

9.  The applicant’s DD Form 214 shows he was discharged on 2 April 1974 in accordance with Army Regulation 635-200, for the good of the service with an undesirable discharge.  He had completed 7 months and 9 days of net active service.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:

    a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.  
    b.  Army Regulation 625-200, 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.

    c.  Army Regulation 625-200, 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 his undesirable discharge should be upgraded because he was not aware that PVT G____ was going to break into another Soldier's room to steal items from the room.  He has no felony charges and he has been a law-abiding citizen.

2.  The applicant's records show he was charged due to the commission of several 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.  Further, his discharge accurately reflects his overall record of service.

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 also renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable 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)                                         AR20100024787



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ABCMR Record of Proceedings (cont)                                         AR20100024787



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