BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110005973 


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 (UD) be upgraded to a general discharge.

2.  He states that being late for two formations due to long hours on duty should not constitute an UD.  He was threatened with prison if he appealed this discharge.  

3.  He provides:

* Four DA Forms 2627-1 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice), dated 22 September and 13 October 1971 and 17 February, 12 March, and 14 March 1972
* Standard Form (SF) 600 (Health Record – Chronological Record of Medical Care), dated 6 August 1972
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 military records show he enlisted in the Regular Army, in pay grade E-1, on 30 November 1970, for 3 years.  He completed training and was awarded military occupational specialty 62E (Crawl Tractor Operator).  He served in Okinawa from 6 May 1971 through 5 November 1972.

3.  He accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ for the following:

* 22 September 1971, for absenting himself from or his appointed place of duty on 21 September and failing to go to his appointed place on 22 September 1971
* 13 October 1971, for failing to go to his appointed place of duty on 12 October 1971
* 17 January 1972, for failing to go to his appointed place of duty on 14 January 1972
* 17 February 1972, for operating a vehicle without an operators permit and without proof of ownership and insurance on 12 February 1972
* 12 March 1972, for failing to go to his appointed place of duty on 10 and 11 March 1972
* 14 March 1972, for failing to go to his appointed place of duty on 12 and 13 March 1972

4.  A SF 600, dated 6 August 1972, shows he was seen in the emergency room after a car accident, was hospitalized and received treatment, and subsequently returned to duty. 

5.  All the documents containing the facts and circumstances surrounding his discharge are not present in the available records.  However, his records contain a DD Form 214 which shows he was discharged in pay grade E-1 on 9 November 1972 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.  His service was characterized as under other than honorable conditions and he was issued a UD Certificate.  He was credited with 1 year, 9 months, and 25 days of total active service and time lost from 5 May to 19 June 1972.

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

7.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of the regulation stated a member who had 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 in lieu of trial by court-martial at any time after the charges have been preferred.  An UD was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

8.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

9.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UD should be upgraded to a general, under honorable conditions, discharge.

2.  The evidence of record show he was punished under Article 15 for five offenses of failing to go to his appointed place of duty and for three offenses of violating a general regulation.  He was also credited with time lost from 5 May to 19 June 1972.  He was discharged on 9 November 1972 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial.

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required him to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  Further, it is presumed that his discharge accurately reflects his overall record of service during this period of service.

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)                                         AR20110005973





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ABCMR Record of Proceedings (cont)                                         AR20110005973



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