IN THE CASE OF:	  

		BOARD DATE:	    21 September 2011

		DOCKET NUMBER:  AR20110004760 


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, in effect, that his undesirable discharge (UD) be upgraded to a general discharge.

2.  The applicant states, in effect, he:

* was too young to understand the importance of serving honorably
* he had a pre-existing drug and alcohol problem which only got worse while serving
* he was asked to leave the military for his own good and safety
* he is regretful and remorseful concerning his dysfunctional and inappropriate behavior while in the military

3.  The applicant provides self-authored statements.

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 25 February 1971.  He completed the training requirements and he was awarded military occupational specialty 13A (Field Artillery Basic).  The highest rank he attained while serving on active duty was private/E-2.

3.  Records show the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 28 June 1971, for attempting to escape from custody
* 4 October 1971, for failure to go to his appointed place of duty
* 22 December 1971, for failing to obey orders and taking an overnight pass
* 3 January 1972, for absenting himself from his unit during the period 30 December 1971 to 2 January 1972
* 7 January 1972, for failing to obey orders
* 29 March 1972, for being incapacitated from intoxicating drugs

4.  On 30 May 1972, charges were preferred against the applicant for assaulting a military policeman and being disorderly in a public place.

5.  On 1 June 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UD, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge the applicant indicated he understood that by requesting a discharge he was admitting guilt to the charge(s) against him or of a lesser included offense that also authorized the imposition of a UD.  He acknowledged he understood that if his request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

6.  On 12 June 1972, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 24 June 1972, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that he was issued confirms he completed a total of 1 year and 4 months of creditable active military service.
7.  On 23 September 1977, and 5 August 1991, the Army Discharge Review Board informed him that it had been determined he was properly and equitably discharged and his requests for a change in the character and/or reason for discharge had been denied.

8.  The applicant provided self-authored statements explaining how remorseful he is and how his drug and alcohol problem led to his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this regulation 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 at any time after the charges have been preferred.

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.  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's request for an upgrade of his UD to a general discharge was carefully considered; however there is insufficient evidence to support his request.

2.  The applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with counsel and to voluntarily request a discharge from the Army in lieu of trial by court-martial.

3.  The applicant's misconduct clearly diminishes the overall quality of his service below that meeting a general discharge.

4.  Therefore, the type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  The record contains no evidence that the applicant was coerced or any indication of procedural or other errors that would have jeopardized his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.  Therefore, there is no basis for granting the applicant's request.

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)                                         AR20110004760



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ABCMR Record of Proceedings (cont)                                         AR20110004760



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