IN THE CASE OF:	  

		BOARD DATE:	  23 February 2012

		DOCKET NUMBER:  AR20110014305 


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 be upgraded to an honorable discharge.

2.  The applicant states at the time he was not afforded legal counsel or advised of the consequences of his decisions.  He didn't understand the ramifications that would impact him for the rest of his life.

3.  The applicant provides no additional evidence in support of his application.

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.  He enlisted in the Regular Army on 16 June 1972 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 71B (Clerk-Typist).

3.  On 10 October 1972, he accepted nonjudicial punishment (NJP) for being absent without leave from 8 - 10 October 1972.

4.  On 27 November 1972, he was assigned to the 6th Battalion, 52nd Air Defense Artillery in Germany.

5.  He accepted NJP on:

* 11 January 1973 for wearing military fatigue trousers with civilian clothes
* 14 December 1973 for unlawful possession of approximately 2 grams of a controlled substance
* 28 February 1974 for willfully disobeying a lawful order from a commissioned officer

6.  On 29 May 1974, he was tried before a special court-martial.  He pled guilty and was found guilty of unlawful possession of .03 grams of heroin.

7.  On 14 April 1975, court-martial charges were preferred against him for:

* wrongful possession of 52 tablets of mandrax, a controlled substance
* wrongful possession of a switch blade knife

8.  On 24 April 1975, he consulted with counsel and voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* guilty of the offense with which he was charged
* making the request of his own free will
* advised he may be furnished an Undesirable Discharge Certificate
* advised he could submit statements in his own behalf

9.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

10.  He submitted a statement with his request for discharge.  He worked at the Emery Gym since October 1973 until April 1975 and they never had any discrepancies that would make the gym not fit for troops to participate in any sports.  He was active in all Wurzburg community sports.  Due to his numerous times he had accepted NJP, he did not think he deserved an honorable discharge, but that he did deserve a general discharge.

11.  His intermediate commanders recommended approval of his request for discharge and that he receive an Undesirable Discharge Certificate.

12.  On 22 May 1975, the appropriate authority approved his request for discharge for the good of the service and directed the issuance of an Undesirable Discharge Certificate.

13.  On 30 May 1975, he was discharged for the good of the service and issued an Undesirable Discharge Certificate.  He completed 2 years, 8 months and 
27 days of active service that was characterized as under other than honorable conditions.  He had 78 days time lost.

14.  The Army Discharge Review Board (ADRB) reviewed his discharge on 
5 May 1981 and 30 December 1985 (after a personal hearing) and denied his request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an Undesirable Discharge Certificate was normally furnished an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was 

appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  Whenever there was doubt, it was to be resolved in favor of the individual.

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was charged with an offense punishable by a punitive discharge.  Contrary to his contentions, the evidence of record shows he consulted with counsel, voluntarily admitted guilt to the offense or lesser offenses included, and requested discharge in lieu of court-martial.  He acknowledged in his request for discharge that he could receive an undesirable discharge.

2.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  An undesirable discharge was normally considered appropriate when a member was separated under the provisions of chapter 10.  There is no evidence of procedural or other errors that would have jeopardized his rights.  

4.  He accepted NJP on four occasions, one of which was for unlawful possession of a controlled substance.  He was convicted by a special court-martial of possession of heroin.  The court-martial charges preferred against him included wrongful possession of a controlled substance.  Therefore, his service is determined to be unsatisfactory.

5.  In view of the above, there is an insufficient basis to upgrade his discharge to an honorable discharge or a general discharge under honorable conditions.



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)                                         AR20110014305



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ABCMR Record of Proceedings (cont)                                         AR20110014305



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