IN THE CASE OF:	  

		BOARD DATE:  10 May 2012

		DOCKET NUMBER:  AR20110024435 


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 undesirable discharge. 

2.  The applicant states that while he was at Fort Leonard Wood, MO, he was told he would be given an early release under general conditions because of his health.  He had been injured.  He also stated that he served well and intended to continue to serve well.   He had only one blemish, which was to an altercation he had with his NCO.    

3.  The applicant did not provide any supporting documentation with his request.

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 for a period of 4 years on 12 June 1972 and held military occupational specialty 11B (Infantryman).  He was advanced to E/2 on 27 November 1972, which was the highest rank/grade he attained during his military service.

3.  On 19 January 1973 he received nonjudicial punishment (NJP) under the provisions of Article 15 of the uniformed code of military justice (UCMJ) for being indebted to Snow White Cleaners in the amount of $25.89.  His punishment consisted of reduction to private/E1, forfeiture of $25.00 pay (suspended for 30 days), 14 days of extra duty (suspended for 30 days) and 14 days restriction to the company area (suspended for 30 days).  He did not appeal his punishment. 

4.  On 2 March 1973, he was arraigned and tried by Summary Court-Martial Order Number 6, for willfully disobeying a lawful order given by his superior non- commissioned officer (NCO) and for being disrespectful in language toward his superior NCO.  He pled not guilty to both charges.  He was found guilty to the charge of being disrespectful toward his superior NCO.  His punishment consisted of a forfeiture of $50.00 for one month, restriction to the company area for 15 days and to perform 15 days hard labor without confinement.  

5.  On 12 April 1973, he received NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order issued by a commissioned officer, breaking his restriction by leaving the company area and wrongfully appropriating the private property of another Soldier.  His punishments consisted of forfeiture of $50.00 pay for one month, 14 days of extra duty and 14 days restriction to the company area.  He did not appeal his punishment. 

6.  On 26 July 1973, he received NJP under the provisions of Article 15 of the UCMJ for being AWOL from his guard post at Company A, arms room. His punishment consisted of a forfeiture of 2 days pay ($20.00), 14 days of extra duty and 14 days of restriction.

7.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave (AWOL) from 5 June 1973 to 28 June 1973; 8 November 1973 to 7 December 1973; and from 8 December 1973 to 12 February 1974.  He was dropped from the rolls on 9 December 1973.  

8.  The facts and circumstances pertaining to the applicant’s discharge proceedings are not in his Military Personnel Records Jacket (MPRJ).  However, the MPRJ does contain a DD Form 214 that shows he was discharged, on 
12 March 1974, under the provisions of Army Regulation 635-200, Chapter 10, with a UOTHC discharge.  At the time of his discharge, the applicant had completed 1 year, 5 months and 2 days of active service.  He also had 121 days of lost time.

9.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.  

10.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge was considered appropriate at the time.

11.  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.

12.   Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his discharge be upgraded.

2.  The applicant's DD Form 214 confirms 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.  The DD Form 214 also confirms that the applicant served only 1 year, 5 months, and 2 days of total creditable active service.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice.  Procedurally, members against whom court-martial charges are preferred and who desire a discharge are required to consult with defense counsel and voluntarily request separation from the Army in lieu of trial by court-martial.

3.  Absent any evidence of record or independent evidence provided by the applicant to the contrary, it is presumed that the applicant's discharge processing was accomplished in accordance with the applicable regulation and that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20110024435



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ABCMR Record of Proceedings (cont)                                         AR20110024435



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