IN THE CASE OF:	  

		BOARD DATE:	  29 November 2011

		DOCKET NUMBER:  AR20110011153 


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 under than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states that his discharge was not caused by his actions; it was caused by his former wife's negative actions.

3.  He provides his DD Form 214 (Report of Separation from Active Duty) and a letter of support.

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 5 November 1974 and he held military occupational specialty 67N (UH-1 Helicopter Repairman).  The highest rank/grade he attained was private first class/E-3.

3.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* on 26 November 1975, for failing to go at the time prescribed to his appointed place of duty
* on 10 February 1976, for failing to go to the prescribed appointed place of duty and for failure to obey a lawful general regulation 

4.  On 13 July 1976, he departed his unit in an absent without leave (AWOL) status and on 12 August 1976, he was dropped from the Army rolls as a deserter.  He returned to military control on 22 October 1976. 

5.  On 28 October 1976, court-martial charges were preferred against the applicant for one specification of being AWOL from 13 July to 24 October 1976.

6.  On 29 October 1976, the applicant 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 a discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

7.  In his request for discharge, he acknowledged he understood that if his request was approved he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further acknowledged he understood that if such a discharge was approved, he could encounter substantial prejudice in civilian life, 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.  He submitted a statement wherein he stated he wanted out of the Army because he had problems at home with his wife.  He was getting a divorce.  He could not stand the Army, either.

8.  On 23 November 1976, the separation authority approved the applicant's request for discharge for the good of the service in accordance with Army Regulation 635-200, chapter 10, and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 15 December 1976.

9.  The DD Form 214 he was issued shows he was discharged on 15 December 1976 for the good of the service in lieu of a court-martial with an Undesirable Discharge Certificate.  This form further confirms he completed a total of 1 year and 10 months of creditable active military service and he had 101 days of lost time due to AWOL.

10.  He provides a character reference letter, dated 11 April 2011, from his son who states that his father, the applicant, has always been a hard worker, mentor, and teacher and that he is proud of him.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed 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 at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense(s) charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  At the time, an Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

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 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 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)                                         AR20110011153



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ABCMR Record of Proceedings (cont)                                         AR20110011153



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