IN THE CASE OF:	  

		BOARD DATE:	  3 January 2012

		DOCKET NUMBER:  AR20110012923 


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 undesirable discharge (UD) be upgraded to a general discharge.

2.  The applicant states he joined the Army during the Vietnam era with every intention of being a good Soldier.  However, his marriage fell apart and this stress, coupled with the threat of being sent to war caused him to act in ways that were out of character.  He was young and immature at the time.  He did not have the coping skills to handle a failing marriage and a military career.  Nevertheless, he has since become a responsible individual, with a pending degree in electrical technology, and acceptance into the local electrical union.  He is also married to a professional woman.

3.  The applicant provides:

* Statements from his spouse, a friend, and a neighbor
* Quitclaim Deed
* Transcripts
* Application for an Apprenticeship

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 born on 30 September 1953.  He was inducted into the Army of the United States (AUS) at 18 years and 6 months of age on 27 April 1972 and held military occupational specialty 74E (Computer Systems Operator).  

3.  He was awarded the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

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

* 13 June 1972, for being absent without leave (AWOL) from 12 to 13 June 1972
* 23 August 1972, for being AWOL from 3 to 16 August 1972 and failure to report to guard duty
* 25 October 1972, for failing to go at the time prescribed to his appointed place of duty

5.  On 30 March 1972, his command preferred court-martial charges against him for one specification of wrongfully possessing 100 grams of marijuana and one specification of wrongfully attempting to sell marijuana to another Soldier.

6.  On 16 July 1973, his command preferred additional court-martial charges against him for one specification of being AWOL from 5 to 9 July 1972.

7.  On 3 August 1972, the applicant 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 a discharge under other than honorable conditions, 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 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).

8.  In his request for discharge, he acknowledged he understood that if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.  He elected not to submit a statement on his own behalf.

9.  On 20 August 1973, his immediate commander recommended approval with the issuance of an Undesirable Discharge Certificate.  The immediate commander indicated that he had interviewed the applicant who stated he understood the meaning and effect of a UD and desired such action.

10.  On 21 August 1972, his intermediate commander also recommended approval with the issuance of an Undesirable Discharge Certificate.

11.  On 28 August 1972, consistent with the applicant's chain of command's recommendations, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  On 5 September 1973, he was accordingly discharged.  

12.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial with a UD.  He completed 1 years, 1 months, and 23 days of creditable active military service.

13.  On 22 October 1974, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

14.  He submitted a quitclaim deed; transcripts and correspondence related to electrical science and apprenticeship; and three statements from his spouse, friend, and neighbor, who describe him as an honest, dependable, friendly, caring, respectful, and trustworthy individual. 

15.  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 UD was normally considered appropriate at the time the applicant was discharged.

16.  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

17.  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 records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested a 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.  The applicant was 18 years and 6 months of age at the time of induction into the AUS and 19 years of age at the time he committed his serious offenses.  However, there is no evidence his misconduct was a result of his age or that he was any less mature than other Soldiers who successfully completed their military service.

3.  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.  This misconduct also renders 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 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)                                         AR20110012923



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ABCMR Record of Proceedings (cont)                                         AR20110012923



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