BOARD DATE:	  19 October 2011

		DOCKET NUMBER:  AR20110006178 


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states he was discharged without knowing what was going on.  He states that someone put drugs in his drink at a club causing him to be hospitalized and that he never used drugs.  He adds was he was treated unfairly because the incident was "swept under the rug" rather than conducting an investigation.

3.  The applicant provides no additional evidence in support of his application.

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.  His military records show he enlisted in the Army National Guard (ARNG) on 3 March 1975.  He completed training and he was awarded the military occupational specialty of grader operator.  His NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) shows he was discharged from the ARNG on 31 May 1978 due to being reassigned to the U.S. Army Reserve and ordered to active duty for failure to satisfactorily participate in required training.  His NGB Form 22 shows he completed 3 years, 2 months, and 29 days of ARNG service.

3.  A State of Mississippi Military Department letter to the applicant, subject:  Ordered to Active Duty, dated 11 January 1977, contained an annotation signed by the applicant indicating he did not wish to appeal his order to active duty and requested that he be sent as soon as possible.  He entered active duty on 1 June 1978.  The highest rank/grade he held was private first class/E-3.

4.  On 11 July 1979, court-martial charges were preferred against him for being absent without leave (AWOL) during the period 11 January to 9 July 1979. 

5.  On 18 July 1979, the applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  He acknowledged that he understood he may request discharge for the good of the service because charges which had been preferred against him for being AWOL for more than 30 days authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he was making the request of his own free will and had not been subjected to coercion.  He acknowledged he had been advised of the implications that were attached to his request.  He acknowledged that by submitting his request for discharge he was admitting he was guilty of the charge(s) against him or of a lesser-included offense(s) which also authorized the imposition of a bad conduct or dishonorable discharge.  He stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  He acknowledged he understood if his discharge request was approved he might be discharged under other than honorable conditions.  He acknowledged he had been advised and understood the possible effects of an under other than honorable conditions discharge and that as a result of the issuance of such a discharge he would be deprived of many benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might expect to encounter substantial prejudice in civilian life if he received an under other than honorable conditions discharge.  He waived his rights and elected not to submit a statement in his own behalf.

6.  On 19 July 1979, the Personnel Control Facility commander at Fort Bragg indicated in an endorsement to the applicant's request for discharge that he had personally interviewed the applicant.  He indicated the applicant stated that he was aware of the nature of the interview and the consequences of an under other than honorable conditions discharge; however, he desired elimination from the service under the provisions of chapter 10, Army Regulation 635-200.  He further stated that the applicant indicated his AWOL was caused by many personal problems and by his being ordered to active duty from the Mississippi ARNG.  The applicant stated that he didn't like the Army and desired to get out of the Army with a less than honorable discharge.  The commander further stated that in view of the applicant's personal conduct, his attitude toward military life, and his lack of rehabilitative potential he recommended approval of the applicant's request for discharge. 

7.  On 31 July 1979, the separation authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed that he be given an under other than honorable conditions discharge.

8.  On 9 August 1979, he was discharged accordingly.  The DD Form 214 he was issued shows he completed 8 months and 11 days of creditable active service during the period under review with 178 days of time lost.

9.  On 24 August 1981, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service.  At the time of the applicant's separation, an under other than honorable conditions discharge was 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.  The applicant had court-martial charges preferred against him for being AWOL for 178 days.

2.  He voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  In doing so, he admitted guilt to the charge or of a lesser included offense which authorized the imposition of a bad conduct or dishonorable discharge.  This serious misconduct warranted a discharge under other than honorable conditions.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  Therefore, he was properly and equitably discharged and he is not entitled to an honorable or a general discharge.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

3.  He contends there was no investigation regarding the alleged placing of drugs in his drink.  However, he was charged with being AWOL and discharged at his own request, not for this alleged incident.  His request for discharge contained the statement that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

4.  In view of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20110006178



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ABCMR Record of Proceedings (cont)                                         AR20110006178



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