IN THE CASE OF:	  

		BOARD DATE:	  29 November 2011

		DOCKET NUMBER:  AR20110010354 


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, in effect, an upgrade of his under other than honorable conditions discharge.

2.  The applicant did not make a statement or submit any evidence.

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 was inducted into the Army of the United States on 30 November 1966 and he held military occupational specialty 57H (Cargo Handler).  He served in Vietnam from 3 May 1967 to 28 April 1968 and he attained the rank/grade of specialist four/E-4.

3.  He was awarded the National Defense Service Medal, Vietnam Service Medal with two bronze service stars, Vietnam Campaign Medal with "1960" Device, one overseas service bar, and the Expert Marksmanship Qualification Badge with Rifle Bar (M-14).

4.  He was honorably released from active duty on 29 November 1968 and he was transferred to the U.S. Army Reserve Control Group to complete his remaining service obligation.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 2 years of creditable active service during this period. 

5.  After a break in service, he enlisted in the Regular Army for 6 years on 7 January 1969.  He was assigned to the 490th Transportation Company, Fort Eustis, VA.

6.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on three separate occasions as follows:

* 22 October 1968, for failing to obey a lawful regulation
* 18 August 1969, for being found sleeping upon his post
* 7 January 1970, for failing to report to his appointed place of duty

7.  On 3 February 1970, he departed his unit in an absent without leave (AWOL) status and on 4 March 1970, he was dropped from the Army rolls as a deserter.  He was apprehended by Federal authorities and returned to military control on 14 September 1976.

8.  On 6 October 1976, court-martial charges were preferred against him for one specification of AWOL from 3 February 1970 to 14 September 1976.

9.  On 23 September 1976, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge 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.

10.  In his request for discharge he indicated that he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also indicated that he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service.  He further acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He also acknowledged he understood that if the discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  

11.  He also submitted a statement in connection with his request wherein he stated that he went AWOL in order to support his mother, brother, sister, wife and child, because his father had been killed.  Money was tight and he had a job that allowed him to help his family.

12.  His immediate, intermediate, and senior commanders recommended approval of the discharge with the issuance of an under other than honorable conditions discharge.

13.  On 20 October 1976, consistent with the chain of command's recommendations, the separation authority approved the applicant's request for voluntary discharge for the good of the service - in lieu of trial by a court-martial in accordance with Army Regulation 635-200, chapter 10, and directed he receive an under other than honorable conditions discharge and be reduced the lowest enlisted grade.  On 16 November 1976, the applicant was accordingly discharged.

14.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service - in lieu of trial by a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 1 year, 2 months, and 12 days of active service, during this period of service, and he had 1,798 days of lost time prior to his ETS (expiration of term of service) date as well as 616 days of lost time after ETS.

15.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

17.  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. 

18.  Paragraph 3-7b of Army Regulation 635-200 states 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 was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to either an honorable or a general discharge.

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)                                         AR20110010354



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ABCMR Record of Proceedings (cont)                                         AR20110010354



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