IN THE CASE OF:	  

		BOARD DATE:	  16 June 2011

		DOCKET NUMBER:  AR20100028129 


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 an upgrade of his discharge under other than honorable conditions.

2.  The applicant states he was discharged for fraudulent entry.  He was never convicted by a court-martial so he was given a discharge under other than honorable conditions.  He states he served his country well.  He was a good Soldier, he never had any problems.  He states one mistake was made by the recruiting office.

3.  The applicant provides:

* DD Form 214, dated 7 February 1969
* DD Form 214, dated 1 March 1977
* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 10 March 1980
* DD Form 215 (Correction of DD Form 214), dated 27 October 1981
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 9 November 2010

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 4 October 1967.  He completed training as light weapons infantryman.  He was honorably discharged on 7 February 1969 for the purpose of immediate reenlistment.  He reenlisted in the RA on 8 February 1969.

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 20 August 1969 for failing to obey a lawful order.

4.  On 8 February 1975, NJP was imposed against him for failing to go to his appointed place of duty.

5.  On 29 December 1976, the applicant was notified that charges were pending against him for three offenses of distributing marijuana.  He acknowledged receipt of the notification on 4 January 1977.  After consulting with counsel, he 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), chapter 10.  In his request for discharge, the applicant acknowledged he understood if his request for discharge were accepted:

* he could be discharged under other than honorable conditions
* he could be deprived of many or all Army benefits as a result of the issuance of such a discharge
* he could be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge

6.  The appropriate authority approved his request for discharge on 4 February 1977 and directed the issuance of a discharge under other than honorable conditions.

7.  On 1 March 1977, the applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulations 635-200, chapter 10.  He completed 9 years, 4 months, and 28 days of total active service.

8.  The applicant again enlisted in the Army on 28 September 1977.  He was released from the custody and control of the Army on 10 March 1980 due to misconduct – fraudulent entry – under the provisions of Army Regulation 
635-200, chapter 14.  Item 27 (Reenlistment Code) of the DD Form 214 he received for this period of service shows "NA" [not applicable].

9.  On 27 October 1981, the applicant was issued a DD Form 215 amending his DD Form 214 for the period ending 10 March 1980 to show reentry eligibility (RE) codes RE-3 and RE-3C.

10.  A review of his records does not show he ever petitioned the Army Discharge Review Board for an upgrade of his discharge.

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

	a.  Chapter 10 provides 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 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 to an individual who is discharged for the good of the service.

	b.  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.

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and the documents he submitted have been considered.

2.  His records show he was discharged under other than honorable conditions on 1 March 1977 for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  His records also show he submitted the request for discharge because charges were pending against him for three separate incidents of distributing marijuana.

3.  The applicant also had NJP imposed against him on two separate occasions for failing to obey a lawful order and failing to go to his appointed place of duty.

4.  While he is commended for his initial period of honorable service, it is an insufficient justification for upgrading his discharge.  Considering his acts of misconduct, it does not appear that the type of discharge he received on 1 March 1977 was too harsh.

5.  The applicant's service from 28 September 1977 to 10 March 1980 was not creditable due to his fraudulent entry.  This period of service, in essence, never existed.  Accordingly, he did not receive any characterization of service that could be considered for upgrade.

6.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100028129



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ABCMR Record of Proceedings (cont)                                         AR20100028129



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