IN THE CASE OF:	   

		BOARD DATE:	  22 November 2011

		DOCKET NUMBER:  AR20110010450 


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 undesirable discharge to a general discharge.

2.  The applicant states, in effect, he was mistreated by noncommissioned officers in basic training and he received no support from his commanding officer so he left because he did not want to serve anymore.  After 43 years he still believes he was "done wrong" and therefore requests an upgrade of his discharge.

3.  The applicant provides a self-authored statement.

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 10 May 1967 at 20 years, 9 months, and 6 days of age.  His records show he did not complete basic combat training.  The highest rank/grade he attained while serving on active duty was private/E-2.  However, he held the rank/grade of private/E-1 at the time of his discharge.

3.  The applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the offenses indicated:

* on 3 June 1967 for being AWOL
* on 5 July 1967 for being AWOL

4.  The applicant's records contain a summary court-martial conviction adjudicated on 29 February 1968 and approved on 5 March 1968 for being AWOL during the periods:

* 6 August 1967 through 26 August 1967
* 27 August 1967 through 26 September 1967
* 6 October 1967 through 2 January 1968

5.  The applicant's records contain a special court-martial conviction adjudicated on 14 August 1968 and approved on 20 August 1968 for being AWOL during the period 17 March 1968 through 31 July 1968.

6.  The charge sheet is not available.  On 4 March 1969, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other honorable conditions, and of the procedures and rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

7.  In his request for discharge, the applicant indicated he understood that by requesting a discharge, he was admitting guilt to the charges against him or to a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  On 8 April 1969, the separation authority approved the applicant's request for discharge and directed that he receive an undesirable discharge.  On 8 April 1969, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he completed 5 months and 8 days of creditable active service with 536 days of lost time.

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

10.  There is no evidence in the applicant's personnel service record which shows the applicant sought assistance from his chain of command for mistreatment.

11.  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 the charges have been preferred.  At the time, a discharge under other than honorable conditions was normally considered appropriate.

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's contention that his discharge should be upgraded was carefully considered and there is insufficient evidence to support this request.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He 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 the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  Based on this record of indiscipline, the applicant's misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to 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 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)                                         AR20110010450



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110010450



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1