IN THE CASE OF:	  

		BOARD DATE:	  6 December 2011

		DOCKET NUMBER:  AR20110011632 


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 other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states the following:

	a.  He loves his country and loved being in the Army, but he did what was necessary to survive and make it out of Germany alive.  Drugs were a problem back then and he did not want to be involved with them in any way.  When he asked his superiors for assistance in fighting the rampant drug trade, he was ignored.  There was only one sergeant who helped him stay as safe as possible.  He finally decided he could not keep putting his life in danger and figured if he started screwing up the drug users would leave him alone.  Those actions resulted in him getting demoted to private, but did not end the daily harassment he was receiving.  

	b.  The sergeant told him he was not successful in getting the situation resolved and together they decided that he (the applicant) had to continue on the path he was on to get rid of all the drug users who were trying to get rid of him.

3.  The applicant provides no additional evidence.

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's records show he enlisted in the Regular Army (RA) on 29 June 1972 and he held military occupational specialty 64C (Motor Transport Operator).  He was assigned to the 1st Battalion, 68th Armor, Baumholder, Germany, on 30 November 1972.  He was discharged on 16 May 1974 for the purpose of immediate reenlistment.  On 17 May 1974, he reenlisted in the RA.

3.  On 26 August 1974, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being a public nuisance and wrongfully communicating a threat to a noncommissioned officer (NCO). 

4.  A DA Form 3975 (Military Police Report), dated 3 October 1975, shows he was apprehended by military police while highly intoxicated for destroying government property and wrongfully possessing a prohibited weapon.   

5.  The specific court-martial charges preferred against him are not available for review with this case.  However, his records show that on 23 October 1975 he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights available to him.  Following consultation with legal counsel, he requested 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).

6.  In his request for discharge, he acknowledged he understood if his request were approved he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life.
7.  His records contain a statement, dated 29 October 1975, wherein his first sergeant stated while in the unit the applicant had been in trouble on three occasions, all of which occurred when the applicant was under the influence of alcohol.  He also stated the applicant was a hard working Soldier when he was not under the influence of alcohol and was willing to assist his fellow Soldiers.

8.  On 11 November 1975, his immediate commander recommended disapproval of the applicant's request for a discharge and stated the applicant had become very insubordinate with his superiors and refused to do what he was told by the NCOs in his section.

9.  On 13 November 1975, his intermediate commander also recommended disapproval of the applicant's request for a discharge and stated in the interest of good discipline, the applicant should be held accountable for his actions and brought to trial.

10.  On 21 November 1975, his senior commander recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.

11.  On 2 December 1975, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed his reduction to private/E-1 and issuance of an Undesirable Discharge Certificate.  On 6 January 1976, he was discharged accordingly.

12.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed a total of 3 years, 6 months, and 8 days of creditable active service.

13.  On 10 March 1982, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined he was properly and equitably discharged.

14.  Army Regulation 635-200, in effect at the time, 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  However, at the time the applicant was discharged an undesirable discharge was appropriate.

15.  Army Regulation 635-200, 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 of service 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 of service would be clearly inappropriate.

16.  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 evidence of record indicates 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.  As such, he voluntarily requested discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  His record of service shows he received NJP for being a public nuisance and wrongfully communicating a threat to an NCO.  In addition, he was apprehended by the military police for destroying government property and wrongfully possessing a prohibited weapon.

3.  Based on his record of misconduct, 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 honorable discharge or 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)                                         AR20110011632





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ABCMR Record of Proceedings (cont)                                         AR20110011632



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