IN THE CASE OF:  

		BOARD DATE:	  8 November 2011

		DOCKET NUMBER:  AR20110013718 


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 (UOTHC) be upgraded to honorable conditions.

2.  The applicant states:

* his discharge should be upgraded to honorable conditions due to mitigating circumstances at the time of the discharge 
* he is now an asset to society, his family, and friends 

3.  The applicant provides:

* VA Form 21-4138 (Statement in Support of Claim)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* 1972 DD Form 214 (Report of Separation from Active Duty)
* Five character reference letters

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 in pay grade E-1 on 26 July 1968. He completed basic combat and advanced individual training and was awarded military occupational specialty 51B (Carpenter).  He was honorably discharged on 27 August 1969 for immediate reenlistment.  He reenlisted on 28 August 1969 for 3 years.  The highest rank/grade he attained while serving on active duty was sergeant/E-5.

3.   A DD Form 458 (Charge Sheet), dated 3 September 1974, shows he was charged with one specification of absenting himself from his organization on or about 4 October 1969 to on or about 29 August 1974.

4.  On 3 September 1974, after consulting with counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), chapter 10, for the good of the service-in lieu of trial by court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge. He also acknowledged he understood he could be discharged UOTHC and the results of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

5.  On 10 September 1974, the separation authority approved the applicant's request for discharge and directed that he receive an Undesirable Discharge Certificate.  He was discharged on 13 September 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial, with a character of service of UOTHC.  

6.  He provides five letters in support of his application wherein each individual stated the applicant is an honest, caring, hard-working person, and someone who has always shown exceptional character in dealing with issues and problems he encounters in his daily life. 

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

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge UOTHC is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

9.  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.

10. 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 should be upgraded was carefully considered and it was determined that there is insufficient evidence to support this request.

2.  He was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of court-martial.  He 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.

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, the applicant is not entitled to an upgraded 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)                                         AR20110013718



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ABCMR Record of Proceedings (cont)                                         AR20110013718



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