BOARD DATE:	  3 April 2012

		DOCKET NUMBER:  AR20110020822 


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 his under other than honorable conditions discharge (UOTHC) be upgraded to an honorable discharge.

2.  The applicant states, in effect, after wrestling with a fellow Soldier he was accused of committing a homosexual act.  The applicant further states that he experienced discrimination, slander, harassment, and was bullied.

3.  The applicant provides a one-page self-authored letter and a copy of his DD Form 214 (Armed Forces of the United States Report of Discharge).

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 in the Regular Army (RA), on 27 May 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 36K (Field Wireman).  The highest rank/grade he attained while serving on active duty was private first class/E-3.  

3.  He was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates:

   a.  11 December 1969, for being absent without leave (AWOL) during the period 7 December 1969 through 10 December 1969
   
   b.  23 March 1970, for being AWOL during the period 16 March 1970 through 22 March 1970

   c.  6 April 1970, for being AWOL during the period 30 March 1970 through 
6 April 1970

4.  On 8 October 1970, the applicant was convicted by a Special Court Martial, Order Number 337, for violation of Article 86 of the Uniform Code of Military Justice.

5.  On 18 January 1971, charges were preferred against the applicant for being AWOL during the periods 30 November 1970 through 14 December 1970 and 
16 December 1970 through 18 January 1971.

6.  Records further show that he continued to have repeated acts of indiscipline including:

a.  AWOL during the period 5 March 1971 through 23 March 1971

  b.  breaking restriction on 26 March 1971 and being AWOL during the period of 26 March 1971 through 15 April 1971

c.  breaking restriction on 23 June 1971 and wrongfully and unlawfully made
a false statement; failed to be at the appointed place of duty and on 2 occasions attempted to escape lawful custody

7.  On 24 June 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.
8.  The applicant provided a one-page self-authored which essentially explained that he was falsely accused of being a homosexual.  Further, he states, in effect, that he was harassed, became deeply depressed and feared for his life especially in combat.  The applicant states, because his leave was denied he took matters in his own hands and left base and went home.  He later explained, in effect, that the incidents have haunted him over the years and he would be grateful for an upgrade of his discharge.

9.  In his request for discharge, the applicant indicated he understood that by requesting a discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

10.  On 12 July 1971, the separation authority approved the applicant’s request for discharge and directed that he receive an under other than honorable conditions discharge.  On 6 August 1971, the applicant was discharged accordingly.

11.  The DD Form 214 (Report of Transfer or Discharge Release or Discharge) he was issued confirms he completed 1 year, 10 months, and 11 days of total creditable active military service with 178 days of lost time.

12.  There is no evidence in the available record which shows that the applicant was discriminated, slandered, harassed, or bullied by military personnel or that he sought assistance for any mistreatment by military personnel.

13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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 the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.


15.  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.

16.  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 that his UOTHC discharge should be upgraded to an honorable discharge was carefully considered and it was determined that there is insufficient evidence to support this request.

2.  During the period of service under review the applicant was punished on several occasions for acts of indiscipline.

3.  There is no evidence that supports the applicant’s contention that he was abused by military personnel.

4.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

5.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable 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)                                         AR20110020822



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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