IN THE CASE OF:	  

		BOARD DATE:	  19 July 2011

		DOCKET NUMBER:  AR20100028346 


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 under other than honorable conditions discharge be upgraded to a general discharge.

2.  He states that he went to his company commander at the time to ask for help related to some problems with his wife but no one would help him.  He would like an upgrade to qualify for Department of Veterans Affairs (VA) benefits.  

3.  He provides 

* Reference letters from family and friends
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 215 (Correction to DD Form 214) 
* Copies of his military medical documentation 

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 Army National Guard on 11 March 1975 for a term of 6 years.  He entered active duty for training (ADT) on 21 August 1975.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was honorably released from ADT on 13 December 1975.  He was apparently discharged from the Army National Guard and transferred to the U.S. Army Reserve (USAR), on an unknown date.

3.  He was ordered to active duty from the USAR on 31 May 1977 and served in Korea from 22 June 1977 to 14 June 1978.  While in Korea, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 19 May 1978 for failing to go at the time prescribed to his appointed place of duty on 16 May 1978.

4.  On 16 November 1978, he was convicted by a special court–martial at Fort Campbell, KY, of one specification of being absent without leave (AWOL) from 4 to 7 October 1978 and one specification of wrongfully appropriating an automobile.  The court sentenced him to a reduction in grade and a forfeiture of pay.  The convening authority approved his sentence on 7 December 1978.

5.  On 2 December 1978, he departed his unit in an AWOL status and on 2 January 1979, he was dropped from the Army rolls as a deserter.  He returned to military control on 15 February 1979.

6.  On 21 February 1979, court-martial charges were preferred against him for one specification of being AWOL from 2 December 1978 to 15 February 1979.

7.  On 28 February 1979, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, 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.  Following consultation with legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, by reason of for the good of the service in lieu of trial by court-martial.

8.  In his request for discharge, he indicated that he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

9.  On 8 March 1979, consistent with his chain of command's recommendations, the separation authority approved the applicant's request for discharge for the good of the service in accordance with Army Regulation 635-200, chapter 10, and directed that he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  On 12 March 1979, the applicant was accordingly discharged.

10.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of a court-martial, with a character of service of under other than honorable conditions.  He completed a total of 1 year, 9 months, and 5 days of creditable active service with 118 days of time lost.

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

12.  He submitted seven letters from friends and co-workers stating that they acknowledge him being a good person, also he is a reliable person and a hard working individual.  He is also described as an organized, efficient, extremely competent individual who has an excellent rapport with people of all ages.  He also submitted medical documents related to his military service.

13.  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.  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 3-7b, 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 contends his under other than honorable conditions discharge should be upgraded to a general discharge.

2.  His records show he 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.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, 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 an upgrade of his discharge.

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)                                         AR20100028346





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ABCMR Record of Proceedings (cont)                                         AR20100028346



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