IN THE CASE OF:	  

		BOARD DATE:	  13 October 2011

		DOCKET NUMBER:  AR20110008344 


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 a fully honorable discharge.

2.  The applicant states his discharge is in error and unjust because he was led to believe by the noncommissioned officer in charge (NCOIC) of the unit to which he was assigned at the time of his discharge that he had permission to go on furlough/leave to the house of his parents, at which time he left and was later apprehended by military police and taken to a holding unit on the orders of the very racist and biased Caucasian male NCOIC who he reported to.  He goes on to state that the NCOIC then asked him if he wanted to be released from the Army and he responded “yes” because he felt that he had been lied on and discriminated against by him.  He also states that he is completely paralyzed and has been for more than 17 years.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), a copy of a general power of attorney, a copy of a release of information and a letter from his physician.

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 enlisted in the Regular Army on 24 May 1972 for a period of 3 years and training in the motor transport career management field.  He completed his basic training and his advanced individual training as a wheel vehicle mechanic at Fort Polk, Louisiana.

3.  On 20 December 1972 nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 19 December to 20 December 1972.

4.  The applicant received orders transferring him to Fort Benning, Georgia with a report date of 26 December 1972; however, he failed to report as ordered and was reported as being AWOL from 26 December 1972 until he was returned to military control on 26 February 1973.

5.  He again went AWOL from 3 March to 10 May 1973 and 1 July to 31 July 1973.  He was returned to military control at Fort Gordon, Georgia and charges were preferred against him on 2 October 1973 for the three AWOL offenses.

6.  After consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – General), chapter 10, in lieu of trial by court-martial.  He indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged he understood that he could receive an undesirable discharge and that he might be deprived of all benefits as a result of such a discharge.  He also acknowledged he had been advised not to accept an undesirable discharge expecting that it would later be changed to a general or an honorable discharge because the likelihood of that occurring was extremely remote.  He elected not to submit a statement in his own behalf.

7.  On 12 October 1973, the appropriate authority approved his request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

8.  Accordingly, he was discharged under other than honorable conditions on 6 November 1973 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 10 months and 20 days of active service and had 203 days of lost time due to AWOL and confinement.

9.  On 26 January 1978 he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and at that time he offered no mitigating circumstances for his misconduct.  On 19 October 1979, after reviewing all of the available facts and circumstances, the ADRB determined that under the circumstances his discharge was both proper and equitable and voted unanimously to deny his 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 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the characterization of service he or she might receive.  An undesirable discharge was normally considered appropriate at the time of the applicant's discharge.

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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  

3.  The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given his repeated acts of misconduct, his undistinguished record of service, and the absence of mitigating circumstances at the time.  His service simply did not rise to the level of under honorable conditions.

4.  Accordingly, there appears to be no basis to grant the applicant’s request.

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)                                         AR20110008344





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ABCMR Record of Proceedings (cont)                                         AR20110008344



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