IN THE CASE OF:	  

		BOARD DATE:	    22 May 2012

		DOCKET NUMBER:  AR20110022831 


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.

2.  The applicant did not make a statement.

3.  The applicant did not provide any 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 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 15 January 1974.  He held military occupational specialty 11B (Infantryman).  He served in Hawaii from
28 May 1974 to 31 December 1974.
3.  His record shows he was awarded or authorized the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Pistol Bar.

4.  On 28 August 1975, his command preferred court-martial charges against him for four specifications of being absent without leave from:

* 31 January to 2 March 1975
* 24 to 31 March 1974
* 21 to 28 April 1975
* 9 June to 22 August 1975

5.  On 3 September 1975, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct 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 counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  In his request for discharge, he acknowledged:

* he was making the request of his own free will and he had not been subjected to any coercion
* he understood if the discharge request was approved he could be furnished an Undesirable Discharge Certificate
* 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
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws

7.  He submitted a statement in connection with his application for voluntary separation wherein he stated he wanted out of the Army because he was being messed with by others in the Army and he did not like to be messed with, particularly by those who held a higher rank and a different color.

8.  On 3 September 1975, his immediate and intermediate commanders recommended approval with the issuance of an under other than honorable conditions discharge.

9.  Consistent with the chain of command's recommendations, on 8 September 1975, the separation authority approved the applicant's voluntary request for discharge for the good of the service in accordance with Army Regulation
635-200, chapter 10.  He directed the applicant be reduced to the rank/grade of private (PV1)/E-1 and issued an Undesirable Discharge Certificate.  On
18 September 1975, the applicant was discharged accordingly.

10.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, with an Undesirable Discharge Certificate.  He completed 1 year,
4 months, and 5 days of total active service with 118 days of time lost.

11.  On 7 September 1977, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states:

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.  

	b.  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.

	c.  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 was charged with the commission of an offense 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.  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.  His character of service is appropriate based on the facts of the case and his discharge accurately reflects his overall record of service.

2.  Based on his record of indiscipline his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

3.  In view of the foregoing, there is no basis for granting the applicant either an honorable or 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 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)                                         AR20110022831



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ABCMR Record of Proceedings (cont)                                         AR20110022831



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