IN THE CASE OF:	  

		BOARD DATE:	  23 February 2012

		DOCKET NUMBER:  AR20110015524 


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 an upgrade of his undesirable discharge.

2.  He states he was discharged due to writing two bad checks.  He states blacks were treated differently than whites at the time and others who wrote bad checks did not face the same treatment due to the fact they were white.  He states his service was commendable and he has been a good citizen since his discharge.

3.  He provides no additional documentary evidence in support of this 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.  His military records show he enlisted in the Regular Army on 8 January 1969.  He completed training and was awarded the military occupational specialty of light weapons infantryman.  The highest rank/grade he held was specialist four/pay grade E-4.

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) during the period 17 July 1969 to 10 July 1970.  His records show he was awarded the Bronze Star Medal with "V" Device.

4.  He accepted nonjudicial punishment (NJP) on:

* 21 August 1969 for being found asleep at his post as a sentinel
* 31 October 1969 for willfully disobeying a direct order
* 7 November 1969 for being absent from his place of duty

5.  On 29 January 1971, he accepted NJP at Fort Bragg, NC for being absent from his place of duty.

6.  On 15 November 1971, court-martial charges were preferred against him for being absent without leave (AWOL) from on or about 12 March to on or about 2 April 1971 and from on or about 3 April to on or about 4 April 1971. 

7.  On 30 November 1971, the applicant voluntarily requested a discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged that he had not been subjected to coercion with respect to his request for discharge and that he had been advised of the implications that were attached to his request.  He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with appointed counsel for consultation and was advised of the basis for his contemplated trial by court-martial under the circumstances which could lead to a bad-conduct or dishonorable discharge, of the effects of his request for discharge, and the rights available to him.  He waived his rights in conjunction with this consultation.

8.  He further acknowledged he understood that if his discharge request were accepted, he may be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that he understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, 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.  He chose not to submit a statement on his own behalf.

9.  A Checklist for Screening Records contained in his military records, dated 3 December 1971, shows he had time lost for three periods of AWOL and two periods of civil confinement.  This document had additional remarks attached indicating he had been arrested by civil authorities on 18 February 1971 while on duty and was charged with seven counts of passing bad checks.  He was arrested on 22 April 1971 while on duty and charged again with passing bad checks and was convicted and sentenced to serve 6 months in Cumberland County Jail.  

10.  On 10 December 1971, the separation authority approved his discharge under provisions of chapter 10, Army Regulation 635-200.  He directed the applicant be given an Undesirable Discharge Certificate.

11.  On 17 December 1971, the applicant was discharged under provisions of chapter 10, Army Regulation 635-200, for the good of the service, with his service characterized as under other than honorable conditions.  He completed 2 years, 2 months, and 28 days of net active service.  He had 251 days of time lost.

12.  On 22 December 1981, the Army Discharge Review Board denied the applicant's request to upgrade his undesirable discharge.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 stated a member who had committed 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 at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense(s) charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

14.  Army Regulation 635-200, paragraph 3-7a, stated 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 met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, stated 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.  Court-martial charges were preferred against him for two periods of AWOL.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

2.  He received NJP on four occasions and he had a total of approximately 251 days of time lost.  Therefore, his service was unsatisfactory.

3.  This serious misconduct warranted a discharge under other than honorable conditions.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

4.  The charges and disposition for passing bad checks were adjudicated in civil court.  There is no available evidence showing he was charged for passing bad checks by the military.

5.  In view of the foregoing, there is an insufficient basis for upgrading his discharge 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)                                         AR20110015524



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ABCMR Record of Proceedings (cont)                                         AR20110015524



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