IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100030497 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, he wishes he had spoken to military police because his confession was coerced.  He adds that he was afraid for anyone to know because of what they said he had done.

3.  The applicant provides no additional documents 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 available evidence shows the applicant served honorably in the Army of the United States from 16 June 1969 to 15 March 1971 when he was separated for immediate reenlistment.  During this period of service he served in the Republic of Vietnam from 5 December 1969 to 7 November 1970.  He held military occupational specialty (MOS) 17K (Ground Surveyor Radar Crewmember).  

3.  On 16 March 1971, he enlisted in the Regular Army in MOS 17K. 

4.  On 31 December 1974, court-martial charges were preferred against the applicant for indecent assault and indecent assault upon a female under the age of 16.

5.  On 15 January 1975, after consulting with counsel, the applicant submitted a voluntary request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Personnel Separations), chapter 10, for the good of the service - in lieu of court-martial.  In his request for discharge he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged that he understood he could receive an undesirable discharge, that he may be ineligible for all benefits administered by the Veterans Administration and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws as a result of such a discharge.  He also elected not to submit a statement in his own behalf.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge.  

6.  On 23 January 1975, the applicant’s unit commander recommended that the applicant's request for discharge be disapproved because the alleged offense was too serious to be disposed of in this manner.

7.  On 27 January 1975, the applicant’s battalion commander recommended that the applicant's request for discharge be disapproved because the alleged offense warranted disposition through a special court-martial.

8.  On 10 February 1975, the brigade commander recommended approval of the applicant's request for discharge for the good of the service.  The brigade commander cited that the seriousness of the alleged offense warrants a discharge.  An undesirable discharge is appropriate and is the minimum penalty he should receive for this offense.


9.  On 21 February 1975, the commanding general approved the applicant's request for discharge for the good of the service and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  

10.  On the same date, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with an undesirable discharge.  He had completed 3 years, 11 months, and 6 days of net active service this period.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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 an undesirable discharge was appropriate at the time.

12.  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.

13.  Army Regulation 635-200, paragraph 3-7b, states 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.  

14.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his undesirable discharge should be upgraded to an honorable discharge because his confession was coerced was carefully considered and found to be without merit.  

2.  The applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of service in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice.  Procedurally, he was required to consult with defense counsel and to voluntarily request a discharge from the Army in lieu of trial by court-martial.  

3.  The applicant's misconduct clearly diminished the overall quality of his service below that meriting an honorable or general discharge.

4.  Therefore, the type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  The record contains no evidence that the applicant was coerced or an indication of procedural or other errors that would have jeopardized his rights.  Therefore, there is no basis for granting the applicant's request.

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)                                         AR20100030497



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ABCMR Record of Proceedings (cont)                                         AR20100030497



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