BOARD DATE:	  8 May 2012

		DOCKET NUMBER:  AR20110024542 


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 from an undesirable to a general discharge (GD) under honorable conditions.

2.  The applicant states he was not treated fairly because he proclaimed to be Muslim.  He further states he was given the choice to either submit a Chapter 10 to the Post General or "receive 15 years in Leavenworth, KS."  The bogus charges which were brought against him were later dropped.

3.  The applicant provides a copy of 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.  The applicant enlisted in the Regular Army on 17 September 1973.  He completed his training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  

3.  The applicant’s disciplinary history includes a conviction by special courtmartial for disobeying a lawful order and assault, and his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 1 October 1974 for failure to be at his appointed place of duty.  It also includes an extensive counseling record for a myriad of conduct and duty performance issues.  

4.  On 20 November 1974, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for two specifications of violating Article 90 of the UCMJ by disobeying a lawful command by his superior officer, and violating Article 91 by striking his superior noncommissioned officer.  

5.  On 4 December 1974, the applicant consulted with legal counsel and after being advised of the basis of the contemplated trial by court-marital and the maximum permissible punishment under the UCMJ he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  On 12 December 1974, the separation authority approved the applicant’s request for discharge and directed the issuance of a discharge UOTHC.  On      23 January 1975, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed 1 year, 3 months, and 27 days of creditable active military service with 10 days of lost time.  

7.  There is no evidence in the applicant's personnel service record which shows he sought assistance from his chain of command for mistreatment issues due to his Muslim faith.

8.  On 1 September 1988, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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, a discharge under other than honorable conditions is normally considered appropriate.

10.  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.

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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his discharge to a GD was carefully considered and it was determined that there is insufficient evidence to support this request.

2.  Although the applicant alleges that he was mistreated during his military service because of his Muslim faith, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention.

3.  The applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  Discharges under the provisions of chapter 10, Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  The court-martial charges would have been dismissed upon approval of his request for discharge.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, which includes 10 days lost due to imprisonment, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or honorable 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)                                         AR20110024542





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ABCMR Record of Proceedings (cont)                                         AR20110024542



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