BOARD DATE:	  23 August 2011

		DOCKET NUMBER:  AR20110002316 


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 discharge.

2.  The applicant states his discharge was the result of a failure of leadership.  He was sick – the sergeant came to the barracks to see him and knew he was sick – he was not told to go to sick-call.  The next day, he was told he would be sent back to basic training or face court-martial so he elected to be discharged.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation or Discharge 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 December 1977.  He successfully completed basic training where he was commended for his performance and selected as the commander's orderly.  He entered basic airborne training on 18 May 1978 and was advanced to pay grade E-2 on 30 June 1978.

3.  On 9 November 1978, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for absence from his appointed place of duty.  The punishment consisted of forfeiture of $100.00 pay per month for 1 month and correctional custody for 30 days.

4.  In his appeal of the nonjudicial punishment the applicant admitted that this was the third time he had been in trouble since being assigned.

5.  On 1 February 1979, charges were preferred against the applicant for willful disobedience of the direct order from a major to report to the Correctional Confinement Facility (CCF).  The applicant consulted with counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial.  He indicated he understood the elements of the charges against him and admitted he was guilty of at least one offense or a lesser-included offense for which a punitive discharge was authorized.  He also acknowledged he would receive a discharge under other than honorable conditions (UOTHC) and he understood he would be deprived of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Veterans Administration.  He stated he understood he could expect to encounter substantial prejudice in civilian life because of this discharge.  He indicated he received legal advice, but the request was made voluntarily and reflected his own free will.

6.  He also submitted a handwritten letter in which he stated, "I refused to go to CCF knowing that CCF wouldn't help me, but will put more pressure on me and with all this pressure on me I won't be able to continue my military services and would like to request discharge so that I may live my life and not the way another man wants me to…This is the second Article 15 in 2 months…"

7.  A mental status evaluation of the applicant's behavior was normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

8.  The company commander and the intermediate commander recommended approval of the request and issuance of a UOTHC discharge.  The separation authority approved those recommendations.

9.  On 16 February 1979, the applicant was separated with a UOTHC discharge under the provisions of Army Regulation 635-200, chapter 10.  He completed 1 year, 1 month, and 17 days of creditable active duty service.

10.  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 UOTHC is normally considered appropriate.

	b.  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.  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 contends that his discharge was the result of a failure of leadership.  He was sick – the sergeant came to the barracks to see him and knew that he was sick – he was not told to go to sick-call.  The next day he was told he would be sent back to basic training or face court-martial so he elected to be discharged.

2.  The applicant's current description of the events that led to his discharge do not comport with the evidence of record.

3.  There is no documentation to support the applicant's contention and no rationale to support the implied conclusion that even those alleged circumstances would warrant the requested relief.

4.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, indicates he wished to avoid a trial by court-martial and the punitive discharge he might have received.

5.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

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)                                         AR20110002316



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ABCMR Record of Proceedings (cont)                                         AR20110002316



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