IN THE CASE OF:	  

		BOARD DATE:	  16 June 2011

		DOCKET NUMBER:  AR20100030395 


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 undesirable discharge.

2.  The applicant states that he was involved in horseplay with 7 other individuals, and he was not the person who was trained that way.  He also stated he has incurred enough of injustice. 

3.  The applicant provides no documentary evidence in support of his application

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) for a period of 3 years on 
24 May 1974.  He was 18 years of age at the time of his enlistment.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 11E (Armor Crewman).  The highest grade the applicant attained was private/pay grade E-2.

3.  On 3 March 1975, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for dereliction of duty.  The punishment consisted of reduction to the grade of private/pay grade E-1, forfeiture of $89.00 pay, 14 days extra duty and 14 days of restriction.

4.  On 25 March 1975, the applicant received NJP under Article 15, UCMJ for wrongfully possessing a pipe containing marijuana residue.  The punishment consisted of a forfeiture of $80.00 pay, 14 days extra duty, and 7 days restriction.

5.  On 17 May 1975, charges were preferred against the applicant for seven specifications of assault. 

6.  On 16 June 1975, the applicant consulted with counsel and voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 
635-200 (Personnel Separation – Enlisted Personnel), for the good of the service.  The applicant acknowledged that he had not been subjected to coercion with respect to his request for discharge. 

     a.  He was afforded the opportunity to consult with counsel.  He was advised that he may be discharged under conditions other than honorable, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veterans under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge Undesirable Discharge Certificate.

    b.  He was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant did not submit a statement in his own behalf. 

7.  The immediate commander and intermediate commanders recommended approval of the applicant’s request for discharge and recommended that he be issued of an undesirable discharge.

8.  On 8 July 1975, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, Army Regulation 35-200, with the issuance of an Undesirable Discharge Certificate.

9.  The applicant’s DD Form 214 (Report of Separation from Active Duty) shows the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, with an undesirable, under other than honorable conditions discharge on 21 July 1975.  The DD Form 214 shows the applicant held the rank of private/pay grade E-1 on the date of discharge and he completed 11 months and 22 days of active military service.  The DD Form 214 also shows that the applicant had 67 days of lost time from 15 May 1975 to 20 July 1975.

10.  There is no evidence the applicant 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 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, 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.

    b.  Army Regulation 625-200, 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.

    c.  Army Regulation 625-200, 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 for an upgrade of his discharge was carefully considered.  


2.  The applicant’s request for separation under the provisions of chapter 10, Army Regulation 635-200, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, considering all the facts of the case, the type of discharge was proper and the characterization of service directed was equitable.

3.  The evidence of record shows the applicant received two Article 15s during the period of service under review.  The evidence of record clearly shows that the applicant’s record of service during the period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Moreover, the applicant’s overall quality of service during the period of service under review was not satisfactory and he is not entitled to a general under honorable conditions 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)                                         AR20100030395





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ABCMR Record of Proceedings (cont)                                         AR20100030395



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