IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20110024321 


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 discharge under other than honorable conditions.

2.  He states there was no evidence he was involved in the incident and no real investigation occurred.  He was young and afraid and the only recourse he thought he had was to ask to be discharged.

3.  He adds that since the time of his discharge he has matured and become a born-again Christian.  He enjoys being married and is also a chef.  He is currently disabled and has experienced changes in life that have taught him to understand right from wrong.

4.  The applicant provides a copy his DD Form 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.  He was born in February 1957 and enlisted in the Regular Army on 25 June 1975 at the age of 18.  After the completion of training, he served in military occupational specialty 94B (Food Service Specialist).

3.  On 18 December 1975, he received nonjudicial punishment (NJP) for wrongfully possessing marijuana.

4.  Headquarters, 2nd Battalion, 5th Cavalry, Summary Court-Martial Order Number 3, dated 8 September 1976, shows that contrary to his pleas of "not guilty," he was charged with the following offenses on the dates specified:

* absence from duty – 7 May 1976
* dereliction of duties – 8 May 1976
* possession of marijuana – 7 May 1976

5.  Headquarters, 1st Battalion, 68th Air Defense Artillery, Summary Court-Martial Order Number 3, dated 2 May 1977, shows that contrary to his plea of "not guilty," he was charged with disobeying a lawful order from his superior commissioned officer.

6.  On 17 May 1977, the applicant's command imposed a bar to reenlistment.

7.  A DD Form 458 (Charge Sheet), dated 3 June 1977, shows he was charged with the following specifications which consisted of:

* being absent without leave (AWOL) during two different periods
* failing to go to his prescribed place of duty at the prescribed time on three occasions
* disobeying a lawful order

8.  Prior to completing his request for discharge for the good of the service, the applicant was afforded the opportunity to consult with counsel and was fully advised of the nature of his rights under the Uniform Code of Military Justice (UCMJ).

9.  On 9 June 1977, he voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service.  He stated he understood that charges were preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He indicated he was making the request of his own free will and had not been subjected to any coercion by any person.

10.  In his request he stated he understood that he:

* could be discharged under other than honorable conditions 
* could be deprived of many or all Army benefits that he might be eligible for
* may be ineligible for many or all benefits administered by the Veterans Administration
* may be deprived of his rights and benefits as a veteran under both Federal and State laws
* could expect to encounter substantial prejudice in civilian life because of an undesirable discharge

11.  On 10 June 1977, the appropriate approval authority approved the applicant's request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and directed issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to the grade of private/E-1.

12.  On 25 August 1977, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  His characterization of service was listed as under other than honorable conditions.  His DD Form 214 shows he completed 2 years, 1 month, and 23 days of net active service and had a total of 8 days of lost time due to AWOL.

13.  His record does not document any acts of valor or special recognition.

14.  He did not apply to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 provided that a member who had 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 in lieu of trial by court-martial at any time after charges had been preferred.  A discharge under other than honorable conditions was normally considered appropriate, but the separation authority could direct a general discharge or an honorable discharge if such was merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would have been improper.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), prescribes separation guidance for enlisted Soldiers under current standards.

	a. 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.

	b.  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 to upgrade his discharge under other than honorable conditions was carefully considered; however, it is not supported by the evidence of record.

2.  He contends he was young at the time and thought the only recourse he had was to request a discharge.  He was 20 years of age at the time of his discharge and there is no evidence to support that he was any less mature than other Soldiers his age who were able to successfully complete their military obligations. He has not submitted sufficient evidence or a convincing argument to support his request.

3.  The applicant was charged with two specifications of being AWOL, three specifications of failing to report to his place of duty at the prescribed time, and of one specification of disobeying a lawful order.  Court-martial charges were preferred against him and he voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The characterization of service for this type of discharge was normally under other than honorable conditions and the evidence shows he was aware of that prior to requesting discharge.  The reason for discharge and the characterization of service were both proper and equitable.

5.  In view of the foregoing, there is no basis to grant the requested relief.

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)                                         AR20110024321



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ABCMR Record of Proceedings (cont)                                         AR20110024321



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