IN THE CASE OF:	  

		BOARD DATE:  13 March 2012

		DOCKET NUMBER:  AR20110017903 


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 upgrade of his undesirable discharge.

2.  The applicant states there were a lot of prejudice issues at the time and he was charged with inciting a riot because he spoke out about the prejudice issues.  He further states he served his country and he was an acting sergeant until the issues came up.

3.  The applicant provides no additional documents with 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.  The applicant enlisted in the Regular Army on 30 June 1972 for a period of 2 years.  He completed his basic training at Fort Dix, NJ and his advanced individual training as a light weapons infantryman at Fort Jackson, SC.  He was transferred to Korea on 26 November 1972 for assignment to an infantry company.

3.  On 10 January 1973, nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) was imposed against him for being drunk in public.

4.  The complete facts and circumstances surrounding the applicant's administrative discharge are not present in the available records.  However, his record shows charges were preferred against him for:

* being disrespectful in language towards a superior noncommissioned officer (NCO)
* disobeying lawful orders from two superior commissioned officers (three specifications)
* disobeying lawful orders from superior NCOs (two specifications)
* threatening a superior commissioned officer
* being disrespectful in language towards a superior commissioned officer

5.  The applicant's record contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 
29 August 1973 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlistee Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial with an undesirable discharge.  He served 1 year and 2 months of total active service.

6.  On 7 May 1974, he applied to the Army Discharge Review Board (ADRB) requesting an upgrade of his undesirable discharge to a general discharge.  He contended that he was being harassed by an officer and that there was discrimination involved.

7.  On 20 May 1974, after careful consideration of the applicant's military records and all other available evidence, the ADRB determined he was properly discharged.  Accordingly, the ADRB denied his request.

8.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the characterization of service he or she might receive.  An undesirable discharge was normally considered appropriate at the time of the applicant's 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 record is void of the complete facts and circumstances surrounding his discharge.  It appears 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.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.


3.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the nature of his misconduct, his overall record of service, and the absence of supporting evidence.  As such, his service simply did not rise to the level of an honorable or a general discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110017903



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ABCMR Record of Proceedings (cont)                                         AR20110017903



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