IN THE CASE OF:	  

		BOARD DATE:	    22 December 2011

		DOCKET NUMBER:  AR20110010691 


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 undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he was charged with a crime he didn't commit.  It was later found out he was not guilty, but his paperwork had already been sent in.  He refers to a New Jersey state trooper's report of incident; however, a copy of that report was not included with his application.

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.  He enlisted in the Regular Army on 28 May 1974 for a period of 2 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 71T (Equipment Maintenance Clerk).

3.  He accepted nonjudicial punishment (NJP) on 27 March 1975 for being absent without leave (AWOL) from 16 December 1974 to 20 February 1975.

4.  On 18 September 1975, he was tried before a special court-martial.  He pled guilty and was found guilty of:

* being AWOL from 30 May to 2 June 1975
* being AWOL from 16 July to 18 August 1975

5.  On 23 September 1975, he was tried before a special court-martial.  He pled not guilty and was found guilty of communicating a threat to injure by attempting to fight a specialist five.

6.  He accepted NJP on:

* 17 November 1975 for failure to go at the prescribed time to his appointed place of duty
* 13 January 1976 for being absent without authority from his appointed place of duty

7.  His records show he departed AWOL on 2 March 1976, was dropped from the rolls on 3 March 1976, and apprehended by Greenbush State Police, Greenbush, NY, and later transferred to the Military Police at Fort Hamilton, NY.

8.  On 19 April 1976, court-martial charges were preferred against him for:

* being AWOL from 2 February to 13 February 1976
* being AWOL from 2 March to 15 April 1976
* wrongful appropriation of a 1966 Cadillac of a value of about $250

9.  The applicant consulted with counsel and voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* guilty of the offense with which he was charged
* making the request of his own free will
* advised he may be furnished an Undesirable Discharge Certificate
* advised he could submit statements in his own behalf
10.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

11.  On 24 May 1976, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest grade.

12.  On 28 May 1976, he was discharged and issued an Undesirable Discharge Certificate.

13.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an Undesirable Discharge Certificate was normally furnished an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  Whenever there was doubt, it was to be resolved in favor of the individual.

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  
15.  The Table of Maximum Punishments of The Manual for Courts-Martial, United States, 1969 (Revised edition) showed the authorized punishment included a punitive discharge for:

* AWOL more than 30 days
* AWOL more than 30 days and terminated by apprehension
* wrongful appropriation of a vehicle

DISCUSSION AND CONCLUSIONS:

1.  He contends he was charged with an offense that he was later found to be not guilty of.  However, he has not indicated which offense it was that he was found not guilty of.  He could have received a punitive discharge for two of the offenses he was charged with on 19 April 1976, AWOL over 30 days, and wrongful appropriation of a vehicle.

2.  Based on his reference to a state police report, not available for review, it is reasonable to presume he is referring to the charge of wrongful appropriation of a vehicle.  Nevertheless, the charge of AWOL over 30 days in and of itself provides for the issuance of a punitive discharge.  Therefore, his request for discharge under the provisions of chapter 10 of Army Regulation 635-200 would remain appropriate.

3.  The applicant's voluntary request for discharge 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.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The issuance of an undesirable discharge was normally considered appropriate when a member was separated under the provisions of chapter 10.  There is no evidence of procedural or other errors that would have jeopardized his rights.  

5.  He accepted NJP on three occasions and he was convicted by two special courts-martial.  Therefore, his service is determined to be unsatisfactory.  

6.  In view of the above, there is an insufficient basis to upgrade his discharge to an honorable discharge or a general discharge under honorable conditions.


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)                                         AR20110010691



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ABCMR Record of Proceedings (cont)                                         AR20110010691



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