BOARD DATE:	  28 April 2011

		DOCKET NUMBER:  AR20100025994 


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 more favorable discharge.

2.  The applicant states that his discharge was warranted at that point in his life because he was unable to adapt to military life and resented authority.  He goes on to state that he was tempermental and headstrong, was unwilling to perform his duties, and lived by his own rules.  He also states that he now knows that there are more important things in life than himself and that God and family are the most important things in his life.  He further states that he is homeless at the moment and needs an upgrade of his discharge and the help of the Department of Veterans Affairs to achieve his goals.  He also states that he apologizes for his past behavior and actions and has learned from his mistakes to the point that they have made him a better man.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and five third-party character references.

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 was born on 12 January 1952 and enlisted in the Regular Army in Knoxville, Tennessee on 31 August 1970.  He underwent his basic training at Fort Jackson, South Carolina and his advanced individual training as an infantryman at Fort Ord, California before being transferred to Korea on 21 February 1971.

3.  He married while in Korea and departed Korea on 20 March 1972 for assignment to Fort Sill, Oklahoma on 25 April 1972.

4.  On 2 June and 26 June 1972 nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty.

5.  On 19 October 1972 NJP was imposed against the applicant for three specifications of failure to go to his place of duty from 16 – 18 October 1972.

6.  On 25 October 1972 NJP was imposed against him for failure to go to his place of duty from 21 – 23 October 1972.

7.  On 27 November 1972 charges were preferred against the applicant for five specifications of failure to go to his place of duty and one specification of breaking restriction.

8.  On 24 November 1972, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – General), chapter 10, in lieu of trial by court-martial.  In his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.   He elected to submit a statement in his own behalf through his counsel which stated that he had met and married his wife, a Korean National, while in Korea and she accompanied him to Fort Sill and was pregnant.  She also had not mastered the English language and his problems started in October 1972 when his baby was born and he felt the need to be with the baby and see to its care.  Additionally, they had another child that was adopted.  As a result, the command initiated discharge proceedings under Army Regulation 635-212.  He contended that he could better care for his family as a civilian and asserted that a chapter 10 discharge would benefit all concerned.

9.  On 21 December 1972 the appropriate authority (a major general) approved his request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

10.  Accordingly, he was discharged on 22 December 1972 under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 1 year, 6 months, and 11 days of total active service.

11.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the 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 trial by court-martial at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions was then and is still normally considered appropriate.

13.  Army Regulation 635-200, 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.

14.  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 applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions and supporting documents have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the repeated nature of his misconduct and his overall record of service.  Additionally, discharges are not upgraded simply for the purpose of qualifying individuals for benefits and his service simply did not rise to the level of even a general discharge.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20100025994





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ABCMR Record of Proceedings (cont)                                         AR20100025994



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