IN THE CASE OF:	  

		BOARD DATE:	    4 August 2011

		DOCKET NUMBER:  AR20110002761 


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 under honorable conditions discharge.

2.  The applicant states he was told that for the good of the service he would be given a general discharge under honorable conditions.  He further contends he was injured in training and could not perform his duties.  He was never aware of the status of his discharge and never received the letter from the Veterans Administration (VA) mailed to him in 1971.

3.  The applicant provides:

* Self-authored statement
* Letter of support from his brother
* Standard Form (SF) 513 (Consultation Sheet), dated 8 June 1970
* SF 513, dated 30 June 1970
* DA Form 3349 (Medical Condition - Physical Profile Record), dated 
23 June 1970


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 was inducted into the Army of the United States on 13 March 1968 and he held military occupational specialty (MOS) 11C (Mortarman).

3.  His DA Form 20 (Enlisted Qualification Record) shows in item 44 (Time Lost under Section 972, Title 10, United States Code and Subsequent to Normal ETS):

* 6 August 1968 to 16 September 1968 - Absent Without Leave (AWOL)
* 21 October 1968 to 22 October 1968 - AWOL
* 2 January 1969 to 6 January 1969 - AWOL
* 29 January 1969 to 2 March 1969 - Confinement (Pretrial)
* 3 March 1969 to 21 April 1969 - Confinement
* 3 February 1970 to 3 February 1970 - AWOL
* 6 February 1970 to 12 February 1970 - AWOL
* 13 February 1970 to 27 April 1970 - Dropped from the Rolls (DFR)
* 1 September 1970 to 28 September 1970 - AWOL
* 29 September 1970 to 18 December 1970 - DFR
* 1 July 1970 to 2 July 1970 - AWOL
* 6 July 1970 to 7 July 1970 - AWOL

4.  His DA Form 20B (Record of Court-Martial Conviction) shows he received three summary court-martial convictions for being AWOL, one special court-martial conviction for unlawfully striking a person in the head with a bunk adapter, and a second special court-martial conviction for being AWOL.

5.   On 30 December 1970, charges were preferred against him under the Uniform Code of Military Justice (UCMJ) for one specification of AWOL from 1 September 1970 to 19 December 1970, a violation of Article 86.  

6.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter
10, Army Regulation 635-200 (Personnel Separations).  He indicated in his request for discharge that he understood if his discharge request was approved he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further acknowledged he understood he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

7.  The separation authority approved his request for discharge on 17 February 1971 and directed the applicant be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  He was discharged accordingly on 2 March 1971.  He had completed 2 years and 29 days of total active service with 275 days of lost time.

8.  The applicant provides:

	a.  A self-authored statement in which he contends he was separated for the good of the service because of a back injury he received in training.  He was in so much back pain he could not continue to perform his duties.  His company commander and first sergeant asked him if he would be interested in being discharged for the good of the service.  They told him he would have to have a psychiatric evaluation and remain in the company area until the paper work was completed.  Further, they told the applicant he would be issued a general under honorable conditions discharge and still be eligible for home loans and school. 

	b.  A letter of support from his brother stating he received a call from his brother's first sergeant informing him that his brother had sustained injuries to his back during training and was requesting 15 days of leave to recover.  However, the leave could only be approved if the applicant had round trip travel arrangements.  He agreed to make travel arrangements for his brother to come home on leave until he was discharged.  Shortly after February 1971, his brother notified him that he had been honorably discharged.

	c.  Medical records which show he complained of and was treated for lower back pain on 8 and 30 June 1970.

9.  On 5 March 1979, the Army Discharge Review Board (ADRB) denied his request to upgrade his discharge.

10.  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 VA 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 at the time the applicant was discharged.  

11.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his discharge be upgraded.

2.  The applicant contends he was discharged for the good of the service based on a back injury.  The evidence shows an extensive pattern of misconduct which started well before June 1970 and which included 275 days of lost time and three summary court-martial and two special court-martial convictions.  This misconduct renders his service unsatisfactory; therefore, he is not entitled to a general under honorable conditions discharge.

3.  His records show he was charged with the commission of an offense under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial 
by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  In view of the above, his request should be denied..

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)                                         AR20110002761





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ABCMR Record of Proceedings (cont)                                         AR20110002761



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