IN THE CASE OF:	  

		BOARD DATE:	    9 August 2011

		DOCKET NUMBER:  AR20110000647 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  He states he received nonjudicial punishment (NJP) for one offense, but the records show he was discharged because of the offense.  He had one offense during his entire period of service.  He was told he was getting an honorable discharge, but because of his time lost he could not reenlist.  He paid no attention to his DD Form 214 (Report of Separation from Active Duty) until a friend informed him that he did not receive an honorable discharge.  When he received his military records in September 2010 he was surprised to see he had received an under other than honorable conditions discharge.

3.  He provides his DD Form 214.

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 record shows he enlisted in the Regular Army on 29 August 1973.  Upon completion of basic combat and advanced individual training he was awarded military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic).

3.  He accepted NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 9 September 1974, for failing to go at the time prescribed to his appointed place of duty on 3 September 1974
* 9 October 1974, for:

* disobeying a lawful order from a noncommissioned officer (NCO) on
20 September 1974
* failing to go at the time prescribed to his appointed place of duty on
22 September 1974 and 30 September 1974
* disobeying a lawful order from his first sergeant on 30 September 1974

* 9 December 1974, for failing go at the time prescribed to his appointed place of duty on 2 and 3 December 1974

4.  The applicant's record contains a DA Form 2166-4 (Enlisted Efficiency Report), dated 17 December 1974, wherein the rater opined he was an unsatisfactory Soldier who had been a burden to his unit from the day he joined.  His obedience to orders was negative.  He had been placed in correctional facilities as a means to help him, but he still had a negative attitude toward the military.

5.  On 13 December 1974, the applicant departed his unit in an absent without leave (AWOL) status and he remained absent until 14 January 1975.

6.  On 14 January 1975, the applicant's unit commander requested the applicant be tried by a special court-martial empowered to adjudge a bad conduct discharge.  His battalion and brigade level commanders concurred with this proposal and recommend approval.

7.  The complete facts and circumstances leading to the applicant's discharge are not available for review with this case.  However, his record contains Special Orders Number 40, issued by the 573rd Personnel Service Company, Fort Bragg, NC, dated 21 February 1975, that reassigned him to the U.S. Army Transfer Point, Fort Bragg, NC for separation processing under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel),
chapter 10 (for the good of the service - in lieu of trial by court-martial), with a reporting date of 21 February 1975.

8.  His record contains Special Orders Number 51, issued by Headquarters XVIII Airborne Corps, Fort Bragg, dated 21 February 1975, that directed his discharge effective 21 February 1975 with a discharge under other than honorable conditions.

9.  The DD Form 214 he was issued at the time, bearing his signature, shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, with service characterized as under other than honorable conditions and issuance of a DD Form 258A (Undesirable Discharge Certificate).  He completed 1 year, 3 months, and 11 days of total active service with 67 days of time lost.

10.  The applicant's record also contains a memorandum issued by Headquarters, XVIII Airborne Corps, Fort Bragg, subject: Request/Decline Narrative Reason for Separation, wherein on 21 February 1975, the applicant declined to receive a separate document explaining the narrative reason for his separation from the U.S. Army, a narrative description of the authority for his separation, and the reenlistment code.

11.  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.

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, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected by upgrading his undesirable discharge to an honorable discharge was carefully considered and determined to lack merit.

2.  He contends he received NJP for one offense, which was the only offense during his entire period of service and that he was told he was getting an honorable discharge.  However, the evidence of record shows he received three separate Article 15s which he acknowledged by his signature on the respective dates.  There is also no evidence of record and he did not provide any evidence that shows he was told he would get an honorable discharge.  In fact, he signed his DD Form 214 that specifically shows he was discharged with a character of service of under other than honorable conditions and that the type of certificate he was issued was a DD Form 258A.

3.  His record is void of the specific facts and circumstances surrounding his discharge.  However, it appears he was charged with the commission of offense(s) 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.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that 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.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110000647



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ABCMR Record of Proceedings (cont)                                         AR20110000647



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