BOARD DATE:	  	31 March 2011

		DOCKET NUMBER:  AR20100024990 


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 the Army had changed during his second period of service, he was not getting what he wanted from the Army, and he was not giving what was expected of him. 

3.  The applicant provides two DD Forms 214, an Armed Forces of the United States Report of Transfer or Discharge and a Report of Separation from Active Duty.

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 enlisted in the Regular Army (RA) on 17 October 1969, for a period of 2 years.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest grade the applicant attained was specialist/pay grade E-4.

3.  On 11 October 1971, the applicant was honorably released from active duty in accordance with chapter 5, Army Regulation 635-200 (Personnel Separation – Enlisted Personnel). 

4.  On 17 October 1972, the applicant again enlisted in the RA for a period of      4 years.  

5.  On 30 August 1973, the applicant was convicted by a special court-martial of one specification of assault, one specification of communicating a threat, one specification of being disrespectful in language, and one specification of striking a commissioned officer.  The military judge dismissed both specifications of communicating a threat and being disrespectful in language.  The sentence consisted of reduction to the grade of private/ pay grade E-1, a forfeiture of $150.00 pay for 4 months, and confinement at hard labor for 3 months. 

6.  The applicant received nonjudical punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on the following dates:

   a.  On 22 March 1974, for being absent without leave (AWOL) from 4 March to 10 March 1974.  

   b.  On 11 June 1974, for being drunk on duty.  

   c.  On 8 July 1974, for failing to go to his appointed place of duty.  

7.  The applicant’s charge sheet is not available.  However, the applicant's record contains all of the other pertinent documents relating to his request for discharge. 

8.  He was afforded the opportunity to consult with counsel.  He was advised that he may be discharged under other than honorable conditions, 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 if he received a an undesirable discharge.


9.  On 16 December 1974, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, and the possible effects of an under other than honorable conditions discharge.  The applicant, subsequent to this legal counsel, voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  The applicant’s request for discharge shows he acknowledged he had not been subjected to coercion with respect to his request for discharge:

	a.  In his request for discharge, the applicant acknowledged he understood that by requesting discharge he was acknowledging that he was guilty of the offense charged, or of a lesser offense included therein, which also authorized the imposition of a bad conduct or dishonorable discharge.  

   b.  The applicant submitted a statement in his own behalf wherein he stated that he wanted out of the Army before he did something bad because he was getting into trouble a lot and he did not want to be a burden to the Army.  He also stated he regretted reenlisting in the Army.

10.  The immediate and intermediate commanders recommended disapproval of the applicant’s request for discharge.

11.  On 21 January 1975, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, Army Regulation 
635-200, with an Undesirable Discharge Certificate. 

12.  The applicants DD Form 214 shows he was discharged on 28 January 1975 in accordance with chapter 10, Army Regulation 635-200 with an undesirable discharge.  He had completed 1 year, 11 months, and 26 days of active service during the period under review; 3 years, 11 months, and 20 days of total active service; and he had 108 days of lost time.

13.  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.

14.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, AWOL over 30 days.

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

   a.  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.  A discharge under other than honorable conditions would normally be furnished an individual who was discharged for the good of the service.  However, an undesirable discharge was appropriate at the time the applicant was discharged.

   b.  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 request for an upgrade of his discharge was carefully considered.  Although the specific facts and circumstances surrounding the applicant's discharge processing are not available, the evidence does include a properly-constituted DD Form 214 that identifies that he was discharged in accordance with chapter 10, Army Regulation 635-200, for the good of the service.

2.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  It appears that all of requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

3.  The applicant had a court-martial conviction, several nonjudicial punishments, and 108 days of lost time.  As part of his request for discharge the applicant submitted a statement wherein he indicated he wanted to get out of the Army because he believed he would get into more trouble if he did not.  

4.  Based on the available evidence, the applicant’s discharge accurately reflects his overall record of service.  Therefore, he is not entitled to 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)                                         AR20100024990



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ABCMR Record of Proceedings (cont)                                         AR20100024990



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