IN THE CASE OF:	  

		BOARD DATE:	    14 June 2011

		DOCKET NUMBER:  AR20100029712 


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.  The applicant states he was abused by military personnel. 

3.  The applicant did not provide any additional documents.

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 8 November 1965.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 62A (Engineer Equipment Maintenance Mechanic).  He served until he was honorably separated on 8 December 1966 for immediate reenlistment.  The highest rank/grade he attained while serving on active duty was private first class/E-3.  

3.  On 9 December 1966, the applicant reenlisted in the RA and he served in MOS 94B (Cook).

4.  He was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates:

   a.  16 April 1967, for driving a military vehicle 30 miles per hour in a 25 mile per hour posted zone; 
   
   b.  1 May 1967, for being absent without leave (AWOL) during the period 
1 May 1967 through 2 May 1967, and for being intoxicated for the proper performance of his duty; and

   c.  16 August 1968, for failing to obey a lawful regulation.

5.  On 13 May 1969, the applicant was convicted by a special court-martial and sentenced to serve 4 months in confinement, a forfeiture of $50 pay, and reduction to private/E-1 for being AWOL from 28 February to 30 March 1969. 

6.  On 8 February 1970, charges were preferred against the applicant for being AWOL from 8 July 1969 to 17 February 1970. 

7.  On 14 March 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

8.  The applicant provided a one-page self-authored letter to the commander which essentially stated that he requested immediate discharge.

9.  In his request for discharge, the applicant indicated he understood that by requesting a 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 or dishonorable discharge.  He further acknowledged he understood that if his 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

10.  On 14 April 1970, the separation authority approved the applicant’s request for discharge and directed that he receive an under other than honorable conditions discharge.  On 24 April 1970, the applicant was discharged accordingly.  The DD Form 214 (Report of Transfer or Discharge Release or Discharge) he was issued confirms he completed 3 years, 5 months, and 2 days of total creditable active military service with 366 days of lost time.

11.  On 7 April 1982, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

12.  There is no evidence in the available record which shows that the applicant was abused by military personnel or that he sought assistance for abuse or mistreatment by military personnel.

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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 at any time after the charges have been preferred.  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's request that his under other than honorable conditions discharge should be upgraded to a general discharge was carefully considered and it was determined that there is insufficient evidence to support this request.

2.  During the period of service under review the applicant was punished on four occasions for acts of indiscipline. 

3.  There is no evidence that supports the applicant’s contention that he was abused by military personnel.

4.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

5.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.  Based on his record of indiscipline, the applicant's 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 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 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)                                         AR20100029712



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ABCMR Record of Proceedings (cont)                                         AR20100029712



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