IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100028011 


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 his undesirable discharge be upgraded to a general discharge.

2.  The applicant states:

* he comes from a long line of military enlisted personnel
* he joined the army in 1975 when he turned 17 years old
* he was raised in Detroit, MI
* he ran into very rude, disrespectful characters at Fort Ord during an exceptional time
* he pinned one of the individuals to the pool table with his pocket knife
* he whipped a dysfunctional Navy enlisted member at Moffett Field where his sister was stationed
* he was told he was too violent for the Army
* now we are in a period of history where his skills are in demand
* he has dedicated his life to securing the existence of his people and a future for his children
* he still runs 10-15 miles and can do up to 1,225 sit-ups at one time
* he will be on the front lines with his troops leading by example when the final battle comes
* he deserves an upgrade for dedicating his life for his God (Yahweh), family, and country

3.  The applicant provides his DD Form 214 (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.  He was born on 27 May 1958.  He enlisted in the Regular Army on 23 June 1975 for a period of 3 years.  He completed training and was awarded military occupational specialty 16J (Defense Acquisition Radar Operator).

3.  On 12 August 1975, nonjudicial punishment (NJP) was imposed against the applicant for being derelict in the performance of his duties.

4.  A DD Form 458 (Charge Sheet) shows charges were preferred against the applicant on 1 March 1976 for being an accessory after the fact, stealing an automobile tire, damaging personal property by removing an automobile radio antenna, assaulting a Navy member by striking him with an automobile radio antenna, and failing to go at the time prescribed to his appointed place of duty.  This charge sheet also shows he was absent without leave (AWOL) on 2 January 1976.

5.  He was AWOL on 2 January 1976, apprehended by civil authorities, and returned to military control on 5 May 1976.  On 7 May 1976, charges were preferred against the applicant for the AWOL period 2 January 1976 to 5 May 1976.

6.  On 12 May 1976 after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated in his request he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated:

* he joined the Army to get a job and leave Detroit, MI
* the Army is alright for some people and others have no business being there in the first place
* they just get into trouble or are in the way of something or somebody all the time
* he wants out of the Army because he seems to be one of those people who either get into trouble or in the way all the time
* he has a chance to get a job in California
* he understands what an undesirable discharge is and he will accept it

7.  On 25 May 1976, the separation authority approved the applicant's request for discharge and directed the issuance of an undesirable discharge.

8.  He was separated with an undesirable discharge on 9 June 1976 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed a total of 6 months and 22 days creditable active service with 145 days of lost time.

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

10.  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, the 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 to an individual who was discharged for the good of the service.

11.  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.  His brief record of service included one NJP, serious offenses for which court-martial charges were preferred against him, and 145 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, his record of service is insufficiently meritorious to warrant a general discharge.

2.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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 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)                                         AR20100028011



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ABCMR Record of Proceedings (cont)                                         AR20100028011



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