BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20110011502 


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

2.  The applicant states:

* he had enlistment guarantees
* there was a breach of contract and he had to sign a waiver for a new military occupational specialty (MOS)

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 31 July 1971.  He completed training and was awarded MOS 15F (Honest John Rocket Crewman).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  The applicant's DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows he enlisted for a 3-year period and acknowledged with the exception of an enlistment option of the unit of choice (Fort Carson, Colorado, or Fort Ord, California), he was not given any promises of any kind concerning assignment to duty, geographical area, schooling, special programs, assignment of government quarters, or transportation of dependents.

4.  The applicant's DA Form 3286-49R (Statements for Enlistment) shows the training the applicant would receive would be in Army Career Group 11 (Infantry/Armor) or 13 (Field Artillery).  Training in Army Career Group 13 was not available to individuals enlisting for the U.S. Army Combat Development Experimentation Command.

5.  The applicant acknowledged that should he not meet prerequisites established by his Army Career Group, he would receive training in an MOS selected by the Army commensurate with his qualifications and no guarantees were made to him beyond the first 3 years of his enlistment.  He also acknowledged a breach of his enlistment would not be constituted if the following occurred:

	a.  If his unit were deployed or relocated in the continental United States or to an overseas area, he would be assigned or remain assigned to the unit for the remaining time specified in the option or for the time specified by Army policy in effect at that time.

	b.  If his unit were inactivated and the transfer of its members to other units was necessitated, he would be given his choice of reassignment to any other unit included in this option or to any unit assigned to the major command to which his unit was assigned at the time of inactivation, provided a vacancy in his MOS and grade existed.

	c.  If his unit were inactivated and another unit was activated to replace the inactivated unit, he would be assigned to the newly-activated unit.

	d.  If his unit were redesignated, he would be assigned to the redesignated unit.

6.  Item 38 (Record of Assignments) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was a trainee at Fort Ord and was transferred to Fort Carson where he completed Honest John Rocket Crewman training on 20 December 1972.

7.  Item 38 also shows the applicant was assigned to Headquarters and Headquarters Battery, 1st Battalion, 21st Field Artillery, from 21 December 1972 until his discharge.  While assigned to Fort Carson the applicant performed duties as a launcher crewman in MOS 15F.

8.  Records show the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on the following occasions:

* on 19 July 1973, for failure to go at the time prescribed to his appointed place of duty
* on 27 August 1973, for being absent without leave (AWOL) during the period 23 July 1973, through 17 August 1973
* on 1 November 1973, for being AWOL during the period 30 October 1973 through 31 October 1973
* on 19 June 1974, for being AWOL during the period 10 June 1974 through 16 June 1974

9.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date of Expiration of Term of Service) of the applicant's DA Form 20 shows the following additional dates the applicant was AWOL:

* 10 December 1973 through 27 December 1973
* 9 January 1974 through 15 January 1974 
* 20 June 1974 through 28 June 1974
* 20 September 1974 through 12 October 1974
* 15 October 1974 through 12 November 1974

10.  Special Court-Martial Order 28, dated 12 March 1974, shows the applicant was tried and found guilty of being AWOL during the following periods:

* 10 December 1973 until on or about 28 December 1973
* 9 January 1974 until on or about 15 January 1974

11.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  The DD Form 214 (Report of Separation from Active Duty) issued to the applicant shows he was discharged on 15 November 1974 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, under separation program designator code KFS (Administrative Discharge – Conduct Triable by Court-Martial) with an under other than honorable conditions character of service.  He completed 1 year, 11 months, and 19 days of active service with 119 days of lost time.

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

13.  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.  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.

14.  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 under other than honorable conditions should be upgraded to a general discharge due to a breach of contract was carefully considered and determined to be without merit.

2.  His records would show an Army breach of contract had he not signed a waiver for a new MOS as he attests in his application.

3.  His record reveals a disciplinary history that includes a special court-martial and multiple acceptances of nonjudicial punishment under the provisions of Article 15 of the UCMJ.

4.  His record also shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 
635-200 to avoid a trial by court-martial which may have resulted in a felony conviction.

5.  Discharges under the provisions of Army Regulation 635-200, chapter 10, require an admission of guilt to the offense(s) charged and requests for discharge in lieu of trial by court-martial are voluntary requests.  As such, government regularity insofar as the discharge process must be presumed.  Therefore, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, it appears the applicant's discharge reflects his overall record of military service.

6.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110011502



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110011502



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1