IN THE CASE OF:	  

		BOARD DATE:	  6 October 2011

		DOCKET NUMBER:  AR20110005934 


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 honorable.

2.  The applicant states he was an outstanding Soldier from the day he entered the Army.  He was planning to make the Army his career.  He served with honor and distinction as evidenced by his record.  He should have been granted an honorable discharge. 

	a.  Unfortunately, he had a horrific car accident in Schweinfurt, Germany.  He made one bad decision on the night of 2 February 1975; he drove home while under the influence [of alcohol].  He was attending a company event where everyone in his unit was drinking.  At the age of 23, he could neither understand nor accept the responsibility of killing a fellow human.

	b.  The Army could have helped him through pre-discharge counseling, but did not do so.  He has lived with the guilt of this every day for the past 37 years.  

	c.  The Department of Veterans Affairs (VA) has already determined that his service was honorable and granted him full VA benefits with a 30 percent disability rating.  He is now age 60 and wants to bring some closure to this matter.  The VA is helping him to cope through counseling.  This was a daily nightmare for him.  He could not deal with it.  As a result, he has post traumatic stress disorder (PTSD).

	d.  He has worked the past 23 years for the U.S. Army Human Resources Command, both in Alexandria, Virginia, and now at Fort Knox, Kentucky.  He has served his country honorably.  His discharge does not give him credit for that service.  He wants an honorable discharge so that he can get back some of his self respect.

3.  The applicant provides no additional documentation.

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.  On 22 May 1972, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 75D (Personnel Records Specialist).

3.  On 29 September 1972, the applicant departed Fort Dix, New Jersey for duty in the Federal Republic of Germany (FRG).

4.  On 17 October 1972, the applicant was assigned to the 3rd Adjutant General Company, 3rd Infantry Division, located in Schweinfurt, FRG.  On 28 November 1972, he was reassigned to the 1st Brigade, 3rd Infantry Division.

	a.  On 5 June 1973, the applicant accepted nonjudicial punishment (NJP) for being absent without leave (AWOL) from his place of duty on 31 May 1973.

	b.  On 2 November 1973, the applicant accepted NJP for failure to go to his appointed place of duty on 29 October 1973.

5.  On 1 March 1974, the applicant was advanced to the rank of specialist four, pay grade E-4.


6.  A Report of Result of Trial, dated 1 May 1975, shows the applicant:

	a.  was tried by a general court-martial on 1 May 1975;

	b.  he pled guilty to negligent homicide and driving while intoxicated;

	c.  he was found guilty of all charges;

	d.  he was sentenced to reduction to pay grade E-1, a bad conduct discharge, a forfeiture of $300.00 pay for 8 months, and confinement at hard labor for
8 months.  So much in excess of reduction to E-1, forfeiture of $300 per month for 8 months, and confinement at hard labor for 4 months was suspended for      1 year); and

	e.  he was placed in confinement on 9 June 1975.

7.  On or about 23 July 1975, the applicant consulted with legal counsel and was advised of the significance of his suspended sentence to a bad conduct discharge and of the possible effects of an undesirable discharge.  He was also advised of the procedures and rights available to him.

8.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, that he could receive an undesirable discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.

9.  On 29 July 1975, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 4 August 1975, the applicant was discharged accordingly.  He had completed 3 years and 8 days of creditable active duty service and he had 65 days of lost time due to being in confinement.

10.  Item 9 (Awards, Decorations and Campaigns) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) indicates he received the National Defense Service Medal and Marksman Marksmanship Qualification Badge with Rifle Bar.

11.  On 23 September 1983, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.
12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, an undesirable discharge was considered to be appropriate at the time.

	b.  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.

	c.  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 contends his undesirable discharge should be upgraded to honorable because he was an outstanding Soldier from the day he entered the Army.

2.  Prior to the court-martial that eventually led to his discharge, the applicant had twice accepted NJP.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

5.  Furthermore, his argument that he was an outstanding Soldier is not supported by any evidence of record, such as award of personal decorations or letters of appreciation or commendation.

6.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20110005934



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ABCMR Record of Proceedings (cont)                                         AR20110005934



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