IN THE CASE OF:	  

		BOARD DATE:	  24 May 2012

		DOCKET NUMBER:  AR20110024038 


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, in effect, that his undesirable discharge be upgraded to a more favorable discharge.

2.  The applicant states that his discharge was too harsh.

3.  The applicant provides no additional documents with his application.

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 13 November 1969 for a period of 3 years.  He completed his basic training at Fort Polk, Louisiana and his advanced individual training as an armor recon specialist at Fort Knox, Kentucky.

3.  He was transferred to Augsburg, Germany on 1 June 1970 for assignment to a mechanized infantry company.  He was advanced to the pay grade of E-3 on 23 June 1970.

4.  During the period of 2 July 1970 to 9 June 1971, nonjudicial punishment (NJP) was imposed against him on four occasions for failure to go to his place of duty, being intoxicated on duty, and breaking into the unit snack bar and stealing beer and currency.

5.  On 27 June 1971 the applicant’s commander initiated action to bar the applicant from reenlistment.  He cited the applicant’s disciplinary record, his attitude towards superiors, and his undesirable habits and traits of character as the basis for his recommendation.  The applicant declined the opportunity to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment on 11 August 1971. 

6.  Meanwhile, on 27 July 1971, he was convicted pursuant to his pleas by a special court-martial of threatening violence towards a superior commissioned officer, being drunk on duty , striking another Soldier in the face with his hand and striking another Soldier in the face with a chain.  He was sentenced to confinement at hard labor for 3 months, a forfeiture of pay and reduction to the pay grade of E-1.

7.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in Roanoke, Virginia.  However, his records do contain a duly authenticated DD Form 214 showing that the applicant was discharged under other than honorable conditions on 12 October 1971, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by             court-martial.  He had served 1 year and 11 months of active service.

8.  There is no evidence in his official records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

9.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of lesser-included offenses which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

10.  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.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by  court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence or mitigating circumstances before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the repeated nature of his misconduct and the absence of mitigating circumstances.  His service simply did not rise to the level of an honorable or a general discharge.

4.  Accordingly, there appears to be no basis to grant his request for an upgrade of his 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)                                         AR20110024038





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ABCMR Record of Proceedings (cont)                                         AR20110024038



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