IN THE CASE OF:	  

		BOARD DATE:	  30 August 2011

		DOCKET NUMBER:  AR20110004109 


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 that he was an only son and he was not fit for military life. He goes on to state that he earned the National Defense Service Medal and not only did he complete his training, he served 9 months and 19 days overseas.  He continues by stating that he desires his discharge to be upgraded so that he can obtain the benefits he earned.

3.  The applicant provides no additional documents with 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 applicant enlisted in the Regular Army on 26 February 1974 for a period of 2 years.  He completed basic training at Fort Leonard Wood, Missouri and advanced individual training as a light weapons infantryman at Fort Polk, Louisiana before being transferred to Germany on 12 July 1974.  He was advanced to the pay grade of E-3 on 7 October 1974.

3.  On 24 December 1974, nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order from a commissioned officer, being disrespectful in language towards a noncommissioned officer, and for being drunk and disorderly in public.  

4.  On 27 December 1974, NJP was imposed against him for disobeying a lawful order from a commissioned officer and for stealing another Soldier’s identification card. 

5.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records as they were loaned to the Veterans Administration Regional Office in Denver, Colorado in 1975.  However, his records do contain a duly-authenticated DD Form 214 (Report of Separation from Active Duty) which shows that he was discharged under other than honorable conditions on 30 April 1975 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and issued an Undesirable Discharge Certificate.  He had served 1 year, 2 months, and 5 days of active service and 9 months and 19 days of foreign service.  

6.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.  

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must indicate that they are submitting the request of their own free will, without coercion from anyone and that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time an undesirable discharge was normally given.


8.  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.

9.  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.  In the absence of evidence to the contrary it must be presumed that 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 courtsmartial was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  

4.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to his overall record of service, and the absence of mitigating circumstances.  His service simply does not rise to the level of even a general discharge.

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)                                         AR20110004109



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ABCMR Record of Proceedings (cont)                                         AR20110004109



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