IN THE CASE OF:	  

		BOARD DATE:	  10 May 2011

		DOCKET NUMBER:  AR20100027426 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he was not told the reason for his discharge.  He further states he suffered a mental breakdown subsequent to his discharge and he is currently being treated for severe depression.

3.  The applicant provides no documentary evidence 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.  The applicant enlisted in the Regular Army on 11 February 1976.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the Marksman Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of significant achievement or valor.

4.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 12 January 1977, for being absent without leave (AWOL) from 7 to 11 January 1977. 

5.  On 4 February 1977, a DD Form 458 (Charge Sheet) was prepared that preferred court-martial charges against the applicant for violating Article 121 of the UCMJ by committing the offense of stealing and Article 130 of the UCMJ by committing the offense of unlawfully entering the room of another Soldier with the intent to commit larceny.

6.  On 14 March 1977, while pending court-martial, the applicant departed AWOL from his unit at Fort Sill, OK.  He remained away for 98 days until being returned to military control on 20 June 1977.

7.  As a result, a subsequent DD Form 458 was prepared preferring an additional charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 14 March to on or about 20 June 1977.

8.  On 1 July 1977, the applicant consulted with legal counsel and he was advised of the basis of the contemplated trial by court-martial and the maximum permissible punishment under the UCMJ, of the possible effects of an under other than honorable conditions discharge, and of the rights and procedures available to him.  Having been advised by legal counsel, he voluntarily 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.

9.  In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.


10.  In the discharge request, the applicant also confirmed his understanding that if his request for discharge were approved, he could receive an under other than honorable conditions discharge.  He further stated he understood that receipt of an under other than honorable conditions discharge could result in his being deprived of many or all Army benefits, his possible ineligibility 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 Federal and state law.

11.  On 1 August 1977, the separation authority approved the applicant’s request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to private (PV1)/E-1.  On
8 August 1977, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed
1 year, 2 months, and 16 days of total active service with 102 days of time lost due to AWOL.

12.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15 year statute of limitations. 

13.  Army Regulation 635-200 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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

14.  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.

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 applicant’s contention that his discharge should be upgraded because he was never told the reason he was being discharged has been carefully considered.  However, the evidence clearly shows the applicant consulted with legal counsel and he was advised of the basis for the contemplated court-marital.  As a result, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200,
chapter 10, in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The under other than honorable conditions discharge he received was normal and appropriate under the regulatory guidance.  His record documents no acts of significant achievement or valor; however, it does reveal a disciplinary history that includes his accrual of 102 days of time lost due to AWOL and commission of serious offenses in violation of the UCMJ for which court-martial charges were preferred.  As a result, his record of service did not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge and it does not support an upgrade at this time.  Therefore, his overall record of service is not sufficiently meritorious to support granting the requested relief.

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 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)                                         AR20100027426



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100027426



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1