IN THE CASE OF:
BOARD DATE: 14 June 2012
DOCKET NUMBER: AR20110024660
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 to general under honorable conditions.
2. The applicant states:
* his discharge was based on his behavior toward authority and being under the influence of drugs and alcohol
* he has been clean and sober for the past 6 years and 7 months
* he is working hard to turn his life around
3. The applicant provides:
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* character-reference letter
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 27 February 1970 for a period of 3 years. He completed training and was awarded military occupational specialty 12D (bridge operator).
3. On 26 January 1971, nonjudicial punishment was imposed against the applicant for failing to obey a lawful order.
4. The applicant's charge sheet is not available. However, his psychiatric evaluation indicates he was charged with firing a firearm on 29 March 1971.
5. On 21 August 1971 after consulting with 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 Enlisted Personnel), chapter 10. In his request he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and he might be deprived of his rights and benefits as a veteran under both Federal and State laws. He also acknowledged he might encounter substantial prejudice in civilian life due to the issuance of an undesirable discharge. He elected not to submit a statement in his own behalf.
6. On 3 September 1971, the separation authority approved the applicant's request for discharge and directed the issuance of an undesirable discharge.
7. He was accordingly discharged on 15 September 1971 for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He completed a total of 1 year, 7 months, and 26 days of creditable service.
8. There is no evidence which shows he was diagnosed with alcohol or drug abuse or dependency prior to his discharge.
9. There is no evidence in the available record that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
10. He provides a character-reference letter from his probation officer, dated 30 November 2011, who attests:
* the applicant was convicted of bank robbery in 2006 and sentenced to a 78-month term of imprisonment followed by a 3-year term of supervised release
* he was released from the Bureau of Prisons in January 2011
* in July 2011, his term of supervised release was revoked and he was sentenced to a 6-month term of imprisonment followed by a 30-month term of supervised release
* he was released from the Bureau of Prisons in November 2011
* he arrived in Montana with no identification and family/friends in the area
* since this time he has been very active in getting his life back on track
* he secured identification, is pursuing housing, and has been actively employed for the past few weeks
* his employer has been very happy with his performance to date
* he has been in compliance with the release conditions imposed by the court
11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who 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 at any time after court-martial charges are preferred. Commanders will ensure that an individual is not coerced into submitting a request for discharge for the good of the service. Consulting counsel will advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate is normally furnished to an individual who is discharged for the good of the service.
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 contends his discharge was based on his behavior toward authority and being under the influence of drugs and alcohol. However, there is no evidence of record and he did not provide any evidence that shows he was diagnosed with alcohol/drug abuse or dependency prior to his discharge.
2. The character-reference letter submitted on behalf of the applicant fails to show the applicant's discharge was unjust and should be upgraded.
3. His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations. He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.
4. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.
5. His record of service included nonjudicial punishment. As a result, his record of service was not satisfactory. His current clean and sober life is commendable but not sufficient to warrant a discharge upgrade.
6. In view of the foregoing, there is an insufficient evidentiary 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 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) AR20110024660
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ABCMR Record of Proceedings (cont) AR20110024660
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