IN THE CASE OF:	  

		BOARD DATE:	    15 December 2011

		DOCKET NUMBER:  AR20110012506 


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 or honorable.

2.  The applicant states the following:

	a.  When he was stationed in Amberg, Germany, the morale of the troops was very low and there was a lot of alcohol and drug abuse going on.  He stayed away from drugs but ended up drinking a lot.  By December 1973, his personality was changing, but he did not realize it at the time.  The stress and morale began to affect his work and he was absent without leave (AWOL) to get away from the stress.  The more stress he had, the more alcohol he drank, and the more absences he had.

	b.  He started drinking in 1970 and did not realize he was an alcoholic until 1994.  After his third drunk driving charge, he took a look at his life and family.  He stopped drinking in 1995 and has been working on getting his life back together ever since.  He is not proud of what happened because he believes in God and his country very strongly.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 31 August 1971
* DD Form 214 (Report of Separation from Active Duty) for the period ending 30 August 1974

* statement of support
* certificate of appreciation
* 16 pages of a Department of Veterans Affairs (VA) file

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 was inducted into the Army of the United States on 26 August 1969 and he held military occupational specialty (MOS) 94B (Cook).  He was assigned to Fort Lewis, WA.

3.  On 20 July 1971, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 14 to 19 July 1971.

4.  He was honorably released from active duty on 31 August 1971 and he was transferred to the U.S. Army Reserve.  The DD Form 214 he was issued for this period of service shows he completed 2 years of creditable active service and had 6 days of lost time due to AWOL.

5.  He enlisted in the Regular Army on 9 May 1973 and held MOS 94B.  He was assigned to the 2nd Armored Cavalry Regiment, Germany.

6.  On 11 January 1974, he received NJP under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty.

7.  On 15 February 1974, he received NJP under the provisions of Article 15, UCMJ, for being AWOL from 4 to 10 January 1974, failing to go to his appointed place of duty, and disobeying a lawful order.

8.  On 11 June 1974, court-martial charges were preferred against him for one specification each of being AWOL as follows:

* from 19 to 28 April 1974
* from 10 to 16 May 1974
* from 3 to 11 June 1974

9.  On 14 June 1974, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial.  He was advised that his offenses were 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.

10.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He acknowledged he understood if the discharge request were approved, he could 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 VA, 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.

11.  On 19 June 1974, his immediate commander recommended approval of the applicant's request for a discharge with the issuance of an Undesirable Discharge Certificate.

12.  On 19 and 21 June 1974, his senior commanders recommended approval of his request for a discharge with the issuance of an Undesirable Discharge Certificate.

13.  On 23 July 1974, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate.  On 30 August 1974, the applicant was discharged accordingly.  He completed 1 year, 3 months, and 22 days of creditable active service during this period with 32 days of lost time due to AWOL.

14.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with his service characterized as "under conditions other than honorable."

15.  The applicant provides a statement of support, dated 21 March 2011, wherein a friend stated he has known the applicant for 5 years, has never seen the applicant drink alcohol, and the applicant is a selfless, giving, and responsible person.

16.  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.

17.  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 included 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.

18.  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 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.

19.  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 shows the applicant was charged with the commission of an offense(s) 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 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 was AWOL on four separate occasions and, in addition to the AWOL, he received NJP for failing to go to his appointed place of duty and disobeying a lawful order.  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 rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable 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 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)                                         AR20110012506



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110012506



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1