IN THE CASE OF:	 

		BOARD DATE:	  11 September 2012

		DOCKET NUMBER:  AR20110025263 


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, in effect, an upgrade of undesirable discharge (UD) to an honorable discharge.

2.  The applicant states his lawyer advised him that he could file for an honorable discharge after he was released.  The applicant also states he was young and irresponsible, but he loves his country, and he was proud to enlist during the Vietnam era.

3.  The applicant does not provide any documents in support of 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 was born in 10 October 1975.  He was inducted into the Army of the United States on 9 October 1969.  He was trained in, awarded, and served in military occupational specialty (MOS) 91A (Medic).  The highest rank/grade he attained while serving on active duty was private first class (E-3).

3.  On 4 February 1970, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for altering an official document.

4.  On 5 January 1971, special court-martial charges were preferred against the applicant for violation of Article 86, UCMJ, for larceny.

5.  On 16 February 1971, the applicant consulted with legal counsel and 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 special court-martial.  He was advised that he might be discharged under conditions other than honorable, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an Undesirable Discharge Certificate.  He was advised that he could submit any statements he desired in his own behalf which would accompany his request for discharge.  He elected not to submit a statement.

6.  In March 1971, both the immediate and intermediate commanders recommended approval of the applicant's request for discharge with the issuance of an Undesirable Discharge Certificate.

7.  On 7 May 1971, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with the issuance of an Undesirable Discharge Certificate.

8.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 18 May 1971 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with the issuance of an Undesirable Discharge Certificate.  He completed 1 year, 7 months, and 10 days of active service.




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

	a.  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 UD was normally considered appropriate at the time.

	b.  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.

	c.  Paragraph 3-7b provides that a general discharge under honorable conditions 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 was charged with the commission of an offense 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.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.   All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

2.  The evidence of record shows the applicant was 20 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any 
less mature than other Soldiers of the same age who successfully completed military service.  The applicant's overall quality of service was not satisfactory.  Considering all the facts of the case, the characterization of service was appropriate and equitable

3.  In view of the foregoing, there is no basis for granting the applicant's requested relief for an honorable or a general 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)                                         AR20110025263



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ABCMR Record of Proceedings (cont)                                         AR20110025263



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