IN THE CASE OF:	  

		BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20110019705 


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states, in effect:

* he dropped out of high school in the 10th grade
* he could not accept rules and discipline
* he was not mature enough for the Army
* he married too young
* his wife threatened to divorce him if he stayed in the Army

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty).

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 born on 12 July 1957.  He enlisted in the Regular Army on 15 December 1975 for a period of 3 years and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 13B (Field Artillery Crewman). 

3.  The applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on the following dates:

* 24 June 1976, for failure to be at his appointed place of duty
* 20 September 1976, for using a meal card belonging to another Soldier 
* 16 February 1977, for assaulting a noncommissioned officer

4.  A DD Form 458 (Charge Sheet), dated 2 November 1978, shows charges were preferred against him for being absent without leave (AWOL) for the periods 30 April through 19 May 1977 and 28 May through 18 October 1977.

5.  On 21 October 1977, after consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10, for the good of the service in lieu of trial by court-martial.

6.  He acknowledged in his request that he understood he could be discharged under other than honorable conditions and receive an Under Other than Honorable Conditions Discharge Certificate, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life due to the issuance of an under other than honorable conditions discharge.  He elected not to submit a statement in his own behalf.

7.  On 3 November 1977, the appropriate authority approved his request for discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 with an Under Other than Honorable Conditions Discharge Certificate.  On 10 November 1977, he was discharged accordingly.  He completed a total of 1 year, 5 months, and 15 days of creditable active service with 184 days of lost time.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

9.  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 under other than honorable conditions discharge was carefully considered and it was determined there is insufficient evidence to support his request.

2.  The applicant contends that he was immature at the time and his wife threatened to divorce him if he stayed in the Army.  However, records show the applicant was 18 years, 11 months, and 13 days of age at the time of his first offense.  He successfully completed basic training and advanced individual training and he knew the Army's standards of conduct.  

3.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  Absent evidence to the contrary, it is determined that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  The applicant's record shows he received three Article 15s and he had two instances of AWOL one of which was lengthy.  He completed 1 year, 5 months, and 15 days of creditable active service with a total of 184 days of time lost.  Based on these facts the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of 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 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)                                         AR20110019705



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ABCMR Record of Proceedings (cont)                                         AR20110019705



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