IN THE CASE OF:	  

		BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110021218 


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 discharge be upgraded to general under honorable conditions.

2.  The applicant states:

* His  Article 15s were unjust
* The discharge is unjust by today’s standard
* He should not carry this burden for the rest of his life

3.  The applicant provides a copy of his DD 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's records show he enlisted in the Regular Army on 30 September 1974.  His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Field Artillery Crewman).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  The available records indicate the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on six occasions:

* On 7 November 1974, for being absent without authority from his unit
* On 13 March 1975, for disobedience to a noncommissioned officer
* On 24 July 1975, for appearing unshaven without a medical profile
* On 8 October 1975, for being absent from place of duty
* On 22 November 1975, for possession of marijuana
* On 8 January 1976, for disobeying a lawful order

4.  Charges are not available.  However, records indicate charges were preferred against the applicant for a series of incidents on 14 January 1976.

5.  On 7 February 1976, the applicant consulted counsel and  submitted a voluntary request for discharge in lieu of trial by court-martial for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  The applicant was advised of the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under conditions other than honorable discharge, and of the procedures and rights that were available to him.

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

7.  On 20 March 1976, the discharge authority approved the applicant's request and directed discharge.  The applicant was discharged on 27 April 1976 with an under conditions other than honorable discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

8.  The applicant's DD Form 214 reflects he completed 1 year, 6 months, and 28 days of creditable active military service.

9.  The applicant states the Article 15s and the discharge he received were unjust by today’s standard.  He also states he is now 57 years old and has changed.

10.  On 1 December 1978, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

11.  Army Regulation 635-200 (Personnel Separations) 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.  At the time, a discharge under conditions other than honorable was normally considered appropriate.

12.  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's request to upgrade his discharge was carefully considered and found to be without merit.

2.  Records show that the applicant was 20 years of age at the time of his offenses.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  Discharges under the provisions of chapter 10, Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  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.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or 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 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)                                         AR20110021218



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ABCMR Record of Proceedings (cont)                                         AR20110021218



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