IN THE CASE OF:	  

		BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100029637 


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 conditions other than honorable to an honorable discharge (HD).

2.  He states he deeply and honestly regrets the ignorance of his youth and his irresponsibility for overdrawing his checking account which was the reason for his discharge.  He also states, in effect, that he had bladder problems that he believes contributed to his company commander's request for his expeditious discharge.  He now has five grown children and hopes his discharge can be changed so he and they may have a sense of dignity if something happens to him.

3.  He 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.  The applicant enlisted in the Regular Army on 30 July 1976.

3.  On 6 May 1977, he voluntarily requested 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.  Prior to submitting his request, he consulted with legal counsel and he was advised of the basis for his contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an undesirable discharge, and the rights available to him.

4.  In his voluntary request for discharge, he indicated he understood that if his request were accepted he could be discharged under other than honorable conditions and that by submitting his request he was admitting he was guilty of the charge against him or a lesser-included offense.  He further acknowledged he understood that as a result of such a discharge, he would be deprived of many or all Army benefits, 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, and he could encounter substantial prejudice in civilian life.

5.  The available records do not show the offense(s) for which he was charged.

6.  His acting company commander recommended approval of his request, noting his duty performance was marginally satisfactory, his attitude was poor, and his appearance needed substantial improvement.

7.  His battalion commander concurred with the acting company commander's recommendation.  He stated he had interviewed the applicant concerning the action and he readily admitted guilt of the charge and specification.  His battalion commander stated he appeared contrite to a degree, but this attitude had not motivated him to improve his performance of duty.

8.  On 27 May 1977, the separation authority approved his request for discharge and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate.  On 28 June 1977, he was discharged accordingly and his service was characterized as under conditions other than honorable.  He completed 10 months and 29 days of total active service.

9.  A Standard Form 93 (Report of Medical History) prepared during his discharge processing shows he had a history of enuresis (commonly known as bedwetting).

10.  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.

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

	a.  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.

	b.  Paragraph 3-7a provides that an HD 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 (GD) 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 HD.  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 evidence of record does not support the applicant's request for an upgrade of his discharge.

2.  The available documentation does not show his medical condition was the reason his commander recommended his discharge.

3.  Although the record does not show the specific charge(s) against him, the record does 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.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  He admitted he was guilty of a charge(s) or a lesser-included offense that authorized the imposition of a bad conduct or dishonorable discharge.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an HD or a GD.

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)                                         AR20100029637



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ABCMR Record of Proceedings (cont)                                         AR20100029637



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