IN THE CASE OF:	  

		BOARD DATE:	  6 October 2011

		DOCKET NUMBER:  AR20110004318 


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 an upgrade of his undesirable discharge to a general discharge.

2.  The applicant states:

* He was young and immature at the time
* He was a driver for a General Officer, but he was injured in a car accident and he stayed in the hospital a long time
* He worked as a supply clerk and gave a Soldier a jacket in exchange for some money; the first sergeant gave him two choices, he could go to jail or request a discharge, and he was afraid to go to jail
* After his discharge, he worked in the aerospace program and in the railroad and received many certifications
* He is now a family man with grown children and he is involved in the church and the community; he is ashamed of what he did

3.  The applicant did not provide any additional evidence. 

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 born on 19 November 1955 and enlisted in the Regular Army (RA) at age 19 on 11 October 1974.  He held military occupational specialty 76Y (Unit Supply Specialist).  The highest rank/grade he attained was private first class/E-3.

3.  On 21 April 1975, he was convicted by a special court-martial of one specification of being absent without leave (AWOL) from 13 May 1974 to 6 March 1975.  The court sentenced him to confinement at hard labor for 4 months (suspended) and a forfeiture of pay.  The convening authority approved his sentence on 5 May 1975.

4.  On 27 May 1975, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.

5.  On 21 July 1975, his immediate commander initiated a Bar to Reenlistment Certificate against him, citing multiple incidents of misconduct including apprehension by the Military Police (MP) for driving under the influence, interfering with MP duties, being drunk and disorderly, apprehension for a hit and run traffic accident and making a threat, operating a vehicle while privileges were suspended, multiple instances of being late for work, and various other misconduct.  His bar was ultimately approved by the approving authority.

6.  The court-martial charge sheet and separation packet are not available for review with this case.  However, his service records coupled with the Army Discharge Review Board's (ADRB) decision indicate the following:

* On 9 February 1976, court-martial charges were preferred against him for one specification of selling five sets of Army fatigues and various specifications of wrongfully and unlawfully asking for money
* On 9 February 1976, he requested a discharge in lieu of trial by a court-martial after having consulted with counsel
* His immediate and intermediate commanders recommended approval
* On 5 March 1976, the separation authority approved his discharge action and directed the issuance of a an Undesirable Discharge Certificate
7.  His records do not contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  However, his records contain:

	a.  Special Orders Number 45, issued by Headquarters, Aberdeen Proving Ground, MD, dated 8 March 1976, reducing him to private/E-1, effective 
12 March 1976, due to being discharged 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.

	b.  Special Orders Number 47, issued by Headquarters, Aberdeen Proving Ground, MD, dated 10 March 1976, reassigning him to the Transfer Station or Transfer Point for separation processing, effective 12 March 1976, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.

	c.  A Certification of Military Service that shows he served in the RA from 
11 October 1974 to 12 March 1976 and he was issued an Undesirable Discharge Certificate. 

8.  On 13 October 1981, the ADRB denied his petition for an upgrade of his discharge.

9.  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.

10.  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 record is void of the complete facts and circumstances surrounding his discharge.  It appears that 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.  

2.  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.

3.  The applicant was age 19 when he enlisted in the Army and age 20 when he committed the misconduct for which he was discharged.  There is no evidence he was any less mature than other Soldiers who successfully completed their military service obligation. 

4.  His records do not contain a copy of his DD Form 214.  However, he was issued a statement of service that captured his active service from 11 October 1974 through 12 March 1976.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  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)                                         AR20110004318



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ABCMR Record of Proceedings (cont)                                         AR20110004318



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