BOARD DATE:	  10 November 2011

		DOCKET NUMBER:  AR20110010757 


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 upgrade of his discharge.

2.  The applicant states his religious beliefs forbid his killing of others.  He submits an extract of the Old Testament book of Genesis containing the Ten Commandments and emprises, "Thou shalt not kill."  The first sergeant and the captain told him he would have to wait 10 years before his discharge was upgraded.  He does not expect nor does he need any material benefit from having his discharge upgraded.

3.  The applicant provides no other documents to substantiate his request.

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 and entered active duty on 22 November 1995.  He completed training as a light vehicle driver and was assigned to an engineer battalion.

3.  Following an extensive investigation under Article 31, Uniform Code of Military Justice (UCMJ) court-martial charges were preferred, on 30 June 1967 for numerous instances of absence from his appointed place of duty, for absence without leave (AWOL) from 1 to 14 May and 11 to 14 June 1967 and for being disrespectful in language and deportment to a sergeant first class.

4.  The applicant consulted with counsel and voluntarily requested discharge - in lieu of trial by court-martial.  He indicated he understood the elements of the charge against him and admitted he was guilty of at least one offense or a lesser-included offense for which a punitive discharge was authorized.  He also acknowledged he would receive a discharge under other than honorable conditions and he understood he would be deprived of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Veterans Administration.  He stated he understood he could expect to encounter substantial prejudice in civilian life because of this discharge.

5.  He also submitted a lengthy statement in which he stated that he would like to stay in the Army but that he had become concerned about his family.  He had been AWOL to take care of his mother who was in poor health.

6.  On 17 July 1997, the separation authority approved the applicant's request for discharge and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade.

7.  The applicant was discharged, on 22 July 1997, under the provisions of Army Regulation 635-200, chapter 10.  The DD Form 214 he was issued at the time shows he completed 1 year, 7 months, and 5 days of creditable active service.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Army Regulation 635-200, 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.  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.

	b.  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.  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 states the discharge should be upgraded because he could not kill others.

2.  The record shows that he served about half of his initial enlistment.  His current explanation for his seeking discharge does not agree with what he offered at the time.  However, this makes no difference.  His voluntary request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, indicates he wished to avoid a trial by court-martial and the punitive discharge he might have received.

3.  The administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110010757





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ABCMR Record of Proceedings (cont)                                         AR20110010757



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