IN THE CASE OF:	  

		BOARD DATE:  24 May 2012

		DOCKET NUMBER:  AR20110024043 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states that he was not given proper justification due to the prejudice that was prevalent during the time.  He further states that he had served one period with an honorable discharge and was never in any other trouble prior to the incident in question.

3.  The applicant provides copies of his DD Form 214s (Armed Forces of the United States Report of Transfer or 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 enlisted in the Regular Army on 23 January 1968 for a period of 3 years.  He completed his basic training at Fort Knox, Kentucky and his advanced individual training as a light weapons infantryman at Fort Polk, Louisiana.  He was transferred to Vietnam on 18 June 1968 and served there until 16 June 1969 when he was transferred to Fort Knox for duty as a drill sergeant.

3.  On 22 March 1970 he was transferred to Germany for assignment as a squad leader in an infantry company.

4.  On 9 April 1970 he was honorably discharged for the purpose of immediate reenlistment.  He had served 2 years, 2 months and 13 days of active service.

5.  On 10 April 1970 he reenlisted in the pay grade of E-5 for a period of 6 years and a variable reenlistment bonus.

6.  On 14 July 1972, charges were preferred against the applicant for four specifications using force and violence to steal money from four privates and four specifications of assaulting four privates by striking them in the face with his hand and fists.

7.  After consulting with defense counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – General), chapter 10.  In his request he indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He elected not to submit a statement o his own behalf.

8.  The appropriate authority (a major general) approved his request for discharge on 18 August 1972 and directed issuance of an Undesirable Discharge Certificate.

9.  Accordingly, he was discharged under other than honorable conditions on 
6 September 1972 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 2 years, 4 months and 27 days of active service during his current enlistment for a total of 4 years, 7 months and 14 days of active service.  His awards include the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, Air Medal, combat Infantryman Badge and the Purple Heart.

10.  On 26 February 1973 he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to fully honorable.  After reviewing all of the facts and circumstances the ADRB determined that his discharge was both proper and equitable under the circumstances and voted to deny his request on 3 October 1973.

11.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  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 serious nature of his misconduct, his rank at the time, and the absence of mitigating circumstances.  Therefore, given the circumstances surrounding his discharge, his service simply did not rise to the level of 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)                                         AR20110024043





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ABCMR Record of Proceedings (cont)                                         AR20110024043



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