IN THE CASE OF:	  

		BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20110024686 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states he left home at the age of 17 to serve in the Army.  He was a few months away from completing his time.  He was in jail for almost 2 months and was not treated fairly in jail, so he requested an Article 13 (i.e., chapter 10), which is a discharge for the good of the service.  He was promised a chapter 10 but when he got his discharge papers it was an undesirable discharge.  He was told to correct his discharge when he got back to the states.  He was promised his discharge would be a general discharge but this promise was not kept.  He served his country well and would like it recognized by his family and friends that he served as a Soldier with dignity and pride.

3.  The applicant provides no additional evidence.

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 22 January 1971 for a period of 3 years.  He held military occupational specialty 11B (Light Weapons Infantryman).  He was assigned to 3rd Squadron, 14th Armored Cavalry Regiment (later redesignated as the 11th Armored Cavalry Regiment), Germany.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* 3 April 1972, for failing to go at the time prescribed to his appointed place of duty
* 8 December 1972, for failing to report to his appointed place of duty
* 25 January 1973, for leaving his guard duty post without being properly relieved and being disrespectful to a noncommissioned officer (NCO) 
* 30 January 1973, for failing to report to his appointed place of duty on two separate occasions
* 2 May 1973, for being disrespectful to an officer and failing to report to his appointed place of duty

4.  On 29 July 1973, court-martial charges were preferred against the applicant for:

* one specification of stealing, by means of force and fear, $500.00 from another Soldier
* one specification of assaulting the same Soldier by cutting him on the throat with a switch blade

5.  On 24 August 1973, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights available to him.  Following consultation with legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  In his request for discharge, he acknowledged he understood if his request were approved he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life both Federal and State laws.

7.  His immediate commander subsequently recommended disapproval of his discharge for the good of the service.  The commander stated the applicant had shown neither desire nor capability to improve his attitude or job performance.  He served no useful purpose and was detrimental to the morale of the unit.  He further stated there were no reasonable grounds to believe that he was now or at the time of his misconduct mentally deranged, deficient, or abnormal.

8.  On 4 September 1973, his intermediate commander concurred with the immediate commander's recommendation for denial of the applicant's request for discharge.

9.  On 11 September 1973, his senior commander recommended approval of his discharge and stated the applicant's records showed he had run afoul of the military justice system numerous times in the past.  This resulted in his being recommended for elimination under the provisions of Army Regulation,
chapter 13, for unfitness.  Although normally the crimes the applicant was charged with are not of the type for which elimination in lieu of trial by court-martial was intended, it would be to the government's benefit if he was quickly eliminated from the service.

10.  On 14 September 1973, the separation authority, a lieutenant general, approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate.

11.  On 24 September 1973, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, with a character of service of under conditions other than honorable with issuance of an Undesirable Discharge Certificate.  He completed 2 years, 7 months, and 28 days of total active service with 5 days of time lost.


12.  On 15 July 1979, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined his discharge was both proper and equitable.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a member who 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 at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.  

	b.  Paragraph 3-7b provides that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  As such, he voluntarily requested discharge to avoid a trial by court-martial.

2.  Despite his contentions to the contrary, in his request for a discharge he acknowledged he understood if his request were approved he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  His record of service shows he received NJP on five separate occasions for failing to go to his appointed place of duty on numerous occasions, being 


disrespectful to an officer and an NCO, and leaving his guard post without authority.  He was subsequently charged with stealing money from and assaulting a fellow Soldier which was the basis for the referral of court-martial charges leading to his request for voluntary discharge.

4.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

5.  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)                                         AR20110024686



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ABCMR Record of Proceedings (cont)                                         AR20110024686



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