IN THE CASE OF:	  

		BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100025133 


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, an upgrade of his undesirable discharge to a general discharge.

2.  The applicant states he returned to active duty and his commander felt he had not been punished enough.  The commander took it upon himself to punish the applicant more which led him to take actions to avoid another prison sentence.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

Counsel did not provide any additional request, statement, or evidence concerning this case.

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 on 18 November 1965 for a period of 2 years.  He completed training and he was awarded military occupational specialty 64A (Light Vehicle Driver).  He was honorably discharged on 1 June 1967 for the purpose of immediate reenlistment.  The DD Form 214 he was issued for this period shows he completed 1 year, 6 months, and 14 days of total active service.  He reenlisted on 2 June 1967 for a period of 6 years.

3.  He served in Vietnam from 10 December 1969 to 2 February 1971 while assigned to the 573rd Supply and Services Company and the 561st General Support Company.

4.  In June 1970, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for assaulting another Soldier by cutting him with a pocket knife.

5.  On 9 January 1971, he was found guilty by a general court-martial of two specifications of assaulting two military policemen and one specification of disobeying a lawful order.  He was sentenced to confinement at hard labor for 10 months and reduction to private (PV1)/E-1.

6.  On 10 September 1971, he received NJP under the provisions of Article 15, UCMJ, for being absent without leave (AWOL) from 31 August to 8 September 1971.

7.  On 19 November 1971, court-martial charges were preferred against him for two specifications of being AWOL from 15 September to 3 October 1971 and from 8 October to 3 November 1971.

8.  On 29 November 1971, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.

9.  Following consult with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  He did not submit a statement in his own behalf.
10.  He acknowledged he understood that if his discharge request was approved, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood that he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.

11.  On 16 December 1971, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed the issuance of an Undesirable Discharge Certificate.

12.  On 17 December 1971, he was discharged accordingly.  The DD Form 214 he was issued for this period shows he completed 5 years and 15 days of total active service with 396 days of time lost.

13.  On 11 October 1973 and 23 March 1982, the Army Discharge Review Board denied his request for an upgrade of his discharge.

14.  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 VA 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.  

15.  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 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 evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 

2.  His record of service shows he had a general court-martial conviction, received NJP on two occasions, and he went AWOL on two other occasions.  He was subsequently charged with being AWOL which was the basis for his voluntary discharge.

3.  Based on his record of misconduct, his service clearly did 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 discharge.

4.  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)                                         AR20100025133



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ABCMR Record of Proceedings (cont)                                         AR20100025133



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