IN THE CASE OF:	  

		BOARD DATE:	    6 September 2011

		DOCKET NUMBER:  AR20110005209 


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 discharge.

2.  The applicant states he did not receive legal counsel before signing the
chapter 10 discharge.

3.  The applicant provided:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* treatment verification
* self-authored statement
* five certificates of completion
* five Article 15s 
* DA Form 20 (Enlisted Qualification Record)
* two character reference letters

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 27 June 1968.  His record shows he completed basic combat training and advanced individual training and was awarded military occupational specialty 51A (Construction Utility Worker).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  The applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five occasions for the offenses indicated:

*   on 22 January 1969, wrongfully engaging in a fist fight
*   on 27 April 1969, willfully and wrongfully destroy a vehicle window
*   on 30 August 1969, absent from unit without authority
*   on 3 December 1969, failing to go to place of duty
*   on 22 July 1970, possessing three plastic bottles of heroin

4.  The applicant was convicted by a summary court-martial, on 6 September 1969, for committing an assault and intentionally inflicting grievous bodily harm.

5.  The applicant's discharge packet is not available.  However, his DD Form 214 shows he was discharged on 25 December 1970 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service, under other than honorable conditions.  He completed 2 years, 5 months, and 26 days of creditable active military service with 3 days lost time.

6.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

7.  The applicant provided a self-authored statement that the Army is the reason for him becoming an alcoholic and drug addict and indicating he has been clean for the past six years.

8.  The applicant provided a treatment verification letter stating he completed the drug program successfully.

9.  The applicant provided two character reference letters from members of the Queen's Chapel United Methodist Church where he worships, stating he is kind, caring and devoted to his family and very active in the church.

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 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.

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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge to a general discharge was carefully considered and determined to be without merit.

2.  The evidence of record shows he received five separate Article 15s which he acknowledged by his signature on the respective dates.

3.  Lacking evidence to the contrary, the applicant's request for separation for the good of the service to avoid trial by court-martial under provisions of chapter 10 of Army Regulation 635-200 is presumed to have been voluntary, administratively correct, and in compliance with applicable regulations.

4.  Based on this record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to 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)                                         AR20110005209





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ABCMR Record of Proceedings (cont)                                         AR20110005209



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