IN THE CASE OF:	  

		BOARD DATE:	  7 June 2011

		DOCKET NUMBER:  AR20100028884 


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 discharge under other than honorable conditions.

2.  The applicant states he and two friends joined the Army in what was then called the "buddy plan."  He states they signed for 1 year in Germany and the remaining time at Fort Knox.  They completed basic and advanced individual training (AIT) at Fort Knox and served their time in Germany.  After serving in Germany they were reassigned to Fort Knox.  They were told if they didn't return to Germany they would be discharged.  At the time they thought they would receive a general discharge under honorable conditions.  The only reason he agreed to [the discharge] was because his personnel records were sent with another person with the same last name as his when he departed to go overseas and he had no chance at all of promotion without his records.  He states he served his country well when he was overseas.

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.  His military records show he enlisted in the Regular Army on 15 December 1971.  He completed initial entry training and was awarded the military occupational specialty of armor reconnaissance specialist.  The highest rank he attained was private first class/pay grade E-3.

3.  A DA Form 3286-34-R (Statements for Enlistment – Part IV – U.S. Army Europe Enlistment Option), dated 15 December 1971, contains his signature indicating he read and understood each of the statements contained in parts I through IV of the DA Form 3286 (Statement for Enlistment – U.S. Army Enlistment Program).  Paragraph 1c states he understood that upon completion of a minimum period of 16 months of service in U.S. Army Europe (USAREUR) or in the USAREUR unit for which he enlisted he would be subject to reassignment in accordance with the needs of the Army.  Paragraph 1e states that no guarantees were made to be beyond those enumerated in lines a, b, c, and d.

4.  A DA Form 3286-42-R (Statements for Enlistment – Part VI – Buddy Combat Arms Enlistment Option), dated 15 December 1971, contains his signature again indicating he read and understood each of the statements contained in parts I through IV of the DA Form 3286.  Paragraph 1d states that no promise of stabilization other than that authorized by the appropriate combat arms enlistment option for which enlisting is offered.

5.  On 4 April 1972, he accepted nonjudicial punishment (NJP) for failing to go at the time prescribed to his appointed place of duty while attending AIT.

6.  On 1 February 1973, he accepted NJP for being absent without leave (AWOL) during the period 15-16 January 1973 while stationed in Germany.

7.  Headquarters, 11th Armored Cavalry, Special Orders Number 65 Extract, dated 6 March 1973, show he was promoted to the rank/grade of private first class/E-3 effective 16 February 1973.

8.  A DD Form 458 (Charge Sheet) shows he was charged with being AWOL, from Germany, during the period 9 August 1973 to an unspecified date and again from 17 September 1973 to an unspecified date.

9.  His DA Form 20 (Enlisted Qualification Record) shows he was AWOL during the periods 15 January 1973, 9 August to 4 September 1973, and 3 February to 18 September 1973, for a total of 167 days.

10.  His complete discharge packet is not contained in his records.  However, he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 19 March 1974 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, with the issuance of a DD Form 258A (Undesirable Discharge Certificate).  The DD Form 214 he was issued shows he completed a total of 1 year, 9 months, and 22 days of active military service with 167 days of lost time.

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

12.  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 Veterans Administration 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 an individual who was discharged for the good of the service.

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 discharge with a characterization of service 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 enlistment documents indicate he was promised, so long as he met the prerequisites, that he would be assigned to USAREUR for a minimum of 16 months and thereafter would be subject to reassignment based on the needs of the Army contrary to his contentions that he was promised reassignment to Fort Knox after serving 1 year in Germany.

2.  His records show he received NJP for failing to go at the time prescribed to his appointed place of duty and for being AWOL.  He was also charged with being AWOL on two additional occasions and accrued a total of 167 days of lost time.

3.  Based on the fact that he was promoted to private first class while stationed in Germany in spite of his already having accepted NJP on two occasions, it appears that any period of missing personnel records would not have precluded his being promoted if he were otherwise eligible.  However, even if this did hinder his promotion, it would not form a basis to upgrade his discharge.

4.  Under the provisions of Army Regulation 635-200, chapter 10, he would have voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  Based on his misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general 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 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)                                         AR20100028884



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ABCMR Record of Proceedings (cont)                                         AR20100028884



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