IN THE CASE OF:	  

		BOARD DATE:	  27 October 2011

		DOCKET NUMBER:  AR20110015861 


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, in effect, upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states, in effect, his discharge was harsh considering the offense.

3.  The applicant provides no additional documents.

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 was inducted into the Army of the United States on 25 August 1969.  He completed training and he was awarded military occupational specialty (MOS) 76V (Equipment Storage Specialist).  The highest rank/grade he attained was private first class (PFC)/E-3.

3.  Records show the applicant received non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on five separate occasions between 29 May 1970 and 15 September 1970.  On three occasions the applicant was absent without leave (AWOL) for a total of 3 days, on one occasion he was sleeping on guard duty, and on another occasion he was in an off-limits area.

4.  The applicant’s discharge packet is not available for review.  However, his
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 20 October 1970 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, with a character of service of under other than honorable conditions and issuance of an Undesirable Discharge Certificate.  He completed 1 year, 1 month, and 28 days of total active service.

5.  On 3 November 1972, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The applicant's record contains an ADRB Brief that shows the applicant was pending court-martial charges for possessing 1.85 grams of marijuana and 1.49 grams of a habit forming narcotic drug on 7 August 1970 and for possession .04 grams of a habit forming narcotic drug and 7.95 grams of marijuana on 6 September 1970.  After carefully considering the applicant's military records and all other available evidence, on 11 May 1973, the ADRB determined he was properly discharged and denied his request for discharge upgrade.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who 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 or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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 an individual who was discharged for the good of the Service.


7.  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.

8.  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 request for an upgrade of his undesirable discharge was carefully considered and determined to contain insufficient evidence.

2.  The applicant's record shows he was charged with the commission of offenses 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.

3.  Although the applicant's record is void of the specific facts and circumstances surrounding his discharge the ADRB Brief indicates he was charged with the commission of 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.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.

4.  The applicant's request for separation for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10 met all requirements of law and regulation, and the applicant's rights were fully protected throughout the separation process.  Further, the discharge accurately reflects his overall record of service.  

5.  The applicant's service record shows he committed five offenses punishable by Article 15.  Based on this record of indiscipline, the applicant's service did not meet the standard of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant 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)                                         AR20110015861



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ABCMR Record of Proceedings (cont)                                         AR20110015861



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