IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110006080 


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 discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states:

* he served honorably in the medical field for over 2 years
* he earned specialist four/E-4 in less than 2 years
* he earned the Expert Field Medical Badge
* his service warrants an honorable discharge

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.  He enlisted in the Regular Army on 29 September 1975 for a period of 3 years.  He completed his training and was awarded military occupational specialty 91B (medical specialist).

3.  On 30 July 1976, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 6 July 1976 to 18 July 1976.

4.  He attained the rank of specialist four/E-4 on 1 May 1977.

5.  On 22 August 1977, he was AWOL and returned to military control on 16 October 1977.  Charges were preferred against him on 19 October 1977 for the AWOL period.  Trial by special court-martial was recommended.

6.  On 8 November 1977, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated that by submitting his request for discharge he acknowledged he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He understood he might be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge, he might be ineligible for many or all benefits administered by the Veterans Administration, he would be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected to make a statement in his own behalf.  He stated he had no desire whatsoever to remain in the Army.

7.  On 29 November 1977, the separation authority approved the applicant's voluntary request for discharge and directed issuance of an under other than honorable conditions discharge.

8.  He was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 20 December 1977 under the provisions of Army Regulation 635-200, chapter 10.  He completed a total of 2 years and 16 days of creditable active service with 67 days of lost time.  His DD Form 214 shows he received the Expert Field Medical Badge.

9.  On 23 December 1981, the Army Discharge Review Board denied his request for a discharge upgrade.

10.  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 includes 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 and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

11.  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.

12.  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.  His contentions were carefully considered.  However, his record of service included one NJP and 67 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

2.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.



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 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)                                         AR20110006080



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110006080



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1