IN THE CASE OF:	  

		BOARD DATE:	  19 June 2012

		DOCKET NUMBER:  AR20110024793 


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 undesirable discharge. 

2.   A statement on the applicant’s request states that he is ill and is in need of medical attention.

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 3 years on 13 August 1971 and held military occupational specialty 13A (Field Artilleryman).  He was advanced to Private First Class (PFC)/E-3 on 10 March 1972, which was the highest rank/grade he attained during his military service.
3.  On 15 January 1973, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order issued by his superior noncommissioned officer (NCO), when he was given an order to get cleaning materials to clean containers.

4.  He submitted an appeal in which he stated that he had talked to the NCO concerned and they both agreed that the applicant did not disobey a lawful order and the NCO stated that he felt all charges should be dropped against the applicant.   The NCO told the commander it was all a misunderstanding.  The commander disapproved the appeal. 

5.  On 6 April 1973, he received NJP under the provisions of Article 15 of the UCMJ for being absent without leave (AWOL) from his unit.  His punishment was a reduction to private (PV2)/E-2.  

6.  He submitted an appeal which stated that:

* he felt the imposed punishment was too severe
* he could not afford to be reduced to PV2 
* he was having difficulty paying his bills and if his grade was reduced he would probably have to send his family back to the states
* he had spent 20 months in the Army and had intentions of staying in longer
* if he does not stay in, the punishments he received would hurt his chances of becoming a police officer

7.  His appeal was denied.

8.  Documentation in his Military Personnel Records Jacket (MPRJ) shows that the applicant had the following charges filed against him:

* Charge I:  Violation of the UCMJ, Article 90 - 

* On or about 17 February 1974 willfully disobeyed a lawful order given by his superior commissioned officer

* Charge II:  Violation of the UCMJ, Article 95 –

* On or about 16 February 1974 resisted being lawfully apprehended by armed forces policemen

* Charge III:  Violation of the UCMJ, Article 112 - 

* On or about 16 February 1974 found drunk while on duty as a member of the battalion reserve force   

* Charge IV:  Violation of the UCMJ, Article 134 -

* On or about 17 February 1974 he wrongfully communicated a threat to kill a non commissioned officer

9.  The facts and circumstances pertaining to the applicant’s discharge proceedings are not in his MPRJ.  However, his record does contain a DD Form 214 that shows he was discharged, on 24 April 1974, under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.  He had completed 2 years, 8 months, and 12 days of active service.  

10.  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.  

11.  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.

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.  

13.   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's DD Form 214 shows 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.  In connection with such a discharge, he would have been charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  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.

2.  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.

3.  Based on his record of misconduct, 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)                                         AR20110024793





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ABCMR Record of Proceedings (cont)                                         AR20110024793



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