IN THE CASE OF:
BOARD DATE: 26 April 2012
DOCKET NUMBER: AR20110020151
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 (UD) to a general discharge.
2. The applicant states he believed his discharge would be upgraded
3 months after he was separated.
3. The applicant provides no additional evidence.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant's records show he enlisted in the Regular Army on 19 August 1969 and he held military occupational specialty 11B (Light Weapons Infantryman).
3. On 14 July 1971, court-martial charges were preferred against him for one specification of being absent without leave from on or about 16 March 1970 to
6 July 1971.
4. Subsequent to referral of court-martial charges, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200 (Enlisted Separations), for the good of the service in lieu of trial by court-martial.
5. In his request for discharge, he acknowledged that he was making the request of his own free will and he had not been subjected to any coercion. He also acknowledged he understood that if his request was approved he could be furnished an Undesirable Discharge Certificate. In addition, that he understood if such a discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.
6. On 3 September 1971, his immediate and intermediate commanders recommended approval of the request for discharge with the issuance of an Undesirable Discharge Certificate.
7. On 14 September 1971, the separation authority approved his voluntary request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate. Accordingly, he was discharged on 21 September 1971.
8. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with an Undesirable Discharge Certificate. He completed a total of 9 months, and 6 days of creditable active military service and he had 477 days of lost time.
9. There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitation.
10. 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. 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 UD was considered appropriate at the time.
11. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests his UD be upgraded to a general discharge.
2. His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process.
3. The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time. A discharge may be upgraded by the ADRB within its 15-year statute of limitations or this
Board if either determines the discharge was improper or inequitable. A review of this case reveals no evidence that suggests there was any error or injustice related to his separation processing and based on the seriousness of his offense, his service clearly does not meet the standards of acceptable conduct for Army personnel. Therefore, it is concluded his discharge was proper and equitable and it accurately reflects his overall record of service.
4. In view of the above, his request should be denied.
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) AR20110020151
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ABCMR Record of Proceedings (cont) AR20110020151
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