BOARD DATE:	 22 September 2011 

		DOCKET NUMBER:  AR20110005875 


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 an honorable discharge.

2.  The applicant states, in effect, he was a good Soldier when he was introduced to drugs.  He tried to quit and turned himself into "CEDAS" twice but it did not help him.  He ended up writing bad checks.  He asked his first sergeant for help, but he was already being processed for a discharge.  He has lived the past 39 years in shame because he was young, stupid, and he could not get help from the U.S. Army.  He believes the Army was also at fault but he was the only one punished.

3.  The applicant provides 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's records show he enlisted in the Regular Army on 23 March 1971, at age 18, and he held military occupational specialty (MOS) 13A (Field Artillery Basic).  On 23 May 1972, he was honorably discharged for the purpose of immediate reenlistment.

3.  On 24 May 1972, he reenlisted in MOS 13A.  

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ):

   a.  On 17 January 1973, for disobeying a lawful order on three separate occasions.

   b.  On 20 March 1973, for violating a lawful regulation and for failing to go to his appointed place of duty.

   c.  On 6 June 1973, for being absent without leave (AWOL) from 26 April to 7 May 1973.

   d.  On 17 October 1973, for disobeying a lawful order on three separate occasions.

5.  On 14 December 1973, a Bar to Reenlistment Certificate was imposed against him for numerous violations of the UCMJ and for passing bad checks totaling over $1,000.00.

6.  On 13 March 1974, court-martial charges were preferred against him for one specification of being AWOL from 4 February to 11 March 1974 and nine specifications of passing bad checks.

7.  On 5 April 1974, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial.  He was advised that his offenses were punishable by a bad conduct discharge or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.

8.  Following consult with legal counsel, he requested discharge 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 understood if the discharge request was approved, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood that he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life.

9.  On 10 April 1974, his immediate commander recommended approval of the applicant's request for a discharge with the issuance of an Undesirable Discharge Certificate.  

10.  On 12 April 1974, his senior commander recommended approval of his request for a discharge with the issuance of an Undesirable Discharge Certificate.

11.  On 19 April 1974, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate.  On 2 May 1974, the applicant was discharged accordingly.  His DD Form 214 shows he completed 1 year, 10 months, and 28 days of creditable active service during this period and he had 11 days of lost time [however, he had 19 days of lost time].

12.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with service characterized as "under conditions other than honorable."  He was also assigned a separation program designator code of 246.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment included 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.  Although an honorable or general discharge is authorized, an undesirable discharge was authorized at the time the applicant was discharged.

14.  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.
15.  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 evidence of record shows the applicant was charged with the commission of an offense 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.  As such, he voluntarily requested discharge to avoid a trial by court-martial. 

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  Prior to submitting his request for a discharge, he was properly and fully advised by his counsel of the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.

3.  The applicant contends his discharge should be upgraded because he was young and foolish at the time.  Records show he was 21 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

4.  His record of service shows he received NJP on four occasions for failing to report to his appointed place of duty, being AWOL, and disobeying lawful orders.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or 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)                                         AR20110005875



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ABCMR Record of Proceedings (cont)                                         AR20110005875



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