IN THE CASE OF:	  

		BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20110003034


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states:

* his discharge was for minor infractions which more properly should have been dealt with by nonjudicial punishment (NJP)
* he did not receive adequate counsel
* there was undue command influence in his case

3.  The applicant provides a copy of his DD Form 214 (Report of Separation 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 20 February 1973 for a period of 4 years.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).

3.  The applicant was advanced/promoted as follows:

* 19730220		Private (PV1)/E-1
* 19730620		Private (PV2)/E-2
* 19730912		Private First Class (PFC)/E-3
* 19740301		Specialist Four (SP4)/E-4
* 19750123		Sergeant (SGT)/E-5
* 19760721		Specialist Four (SP4)/E-4
* 19770203		Private (PV1)/E-1

4.  The applicant's record contains a record of NJP under Article 15, Uniform Code of Military Justice, imposed on 21 July 1976 for falsely pretending he had a dependent wife in order to fraudulently obtain medical treatment from the Army hospital, and for failing to go at the time prescribed to his appointed place of duty.  His punishment included a reduction from SGT to SP4.

5.  On or about 2 September 1976, the applicant departed his unit in an absent without leave (AWOL) status and he remained so absent until on or about
4 January 1977, for a period of 124 days.  Court-martial charges were preferred against him on 11 January 1977 for this offense.

6.  On 11 January 1977, the applicant having consulted with a duly-certified legal counsel, he voluntarily requested discharge for the good of the service 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.  He acknowledged he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge, and that he did not desire further rehabilitation, nor had he any desire for further military service.  He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive.  He submitted a statement in his own behalf in which he stated, "I want a chapter 10 discharge for personal reasons and I don't like the Army."

7.  The applicant's request for discharge was forwarded to the approving authority who, on 3 February 1977, approved the request and directed his discharge with an Under Other Than Honorable Conditions Discharge Certificate.
8.  On 15 February 1977, the applicant was reduced to PV1 and he was accordingly discharged with an Under Other Than Honorable Conditions Discharge Certificate.

9.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's statute of limitations.

10.  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, a discharge under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a states 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.

12.  Army Regulation 635-200, paragraph 3-7b states 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 fraudulently obtained, or tried to obtain, medical care for a female posing as his wife.  He was punished by NJP which resulted in his reduction from SGT to SP4.

2.  The applicant was AWOL for 124 days.  This was a serious offense warranting trial by court-martial.  Court-martial was deemed appropriate based on the charged offense and that a prior NJP failed to have a corrective effect on him.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

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

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20110003034



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ABCMR Record of Proceedings (cont)                                         AR20110003034



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