IN THE CASE OF:	  

		BOARD DATE:  19 June 2012

		DOCKET NUMBER:  AR20120000585 


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.  The applicant states he has paid for the mistake he made as a teenager       30 times over.  He is a different person today, a member of the church who serves on the Usher Board, and a volunteer for the elderly.  He further states if the Board cannot find forgiveness in their hearts, they might as well lock him up for life and throw away the key.

3.  The applicant provides: 

* a self-authored statement
* a letter of reference
* DD Form 214 (Report of Separation from Active Duty)
* DA Form 2627(Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))

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 for six years in the North Carolina Army National Guard (NCARNG) on 31 October 1974 at the age of twenty-two.  On 6 February 1975, he was ordered to active duty for training.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 76V (Equipment Storage Specialist).  On 4 September 1975, he was honorably discharged from the NCARNG for assignment to the active Army.

3.  On 14 April 1976, charges were preferred against the applicant for being absent from his unit from on or about 5 September 1975 until on or about 13 April 1976. 

4.  On 13 April 1976, 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 or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for the good of the service - in lieu of trial by court-martial.

5.  In his request for discharge, he acknowledged he understood by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or a dishonorable discharge.  He acknowledged he was making this request of his own free will and he had not been subjected to any coercion.  He also acknowledged he had been advised of the implications that were attached to his request.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  

6.  The applicant received nonjudicial punishment under the provisions of Article 15 of the UCMJ on 7 May 1976 for being absent from his unit from on or about 19 April 1976 through on or about 4 May 1976.


7.  On 10 May 1976, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  On 26 May 1976, the applicant was accordingly discharged.

8.  The DD Form 214 he was issued shows he was discharged for the good of the service - in lieu of a court-martial with an Undesirable Discharge Certificate.  This form further confirms he completed a total of 4 months and 23 days of creditable active service during this period and he had 328 days of time lost.

9.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  He submits a self-authored statement in which he professes to the positive changes in his life with the help of God, the church, and his work with the elderly in his community.   He is regretful of the bad decisions he has made in the past and requests a second chance.  He also submits a letter of recommendation from a former employer who states the applicant was a dedicated, dependable employee who had to retire in October 2009 due to medical problems. 

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, 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 would normally be furnished an individual who was discharged for the good of the Service at the time the applicant was discharged.

12.  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

13.  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.  His records show he 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.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

2.  Records show the applicant was over 22 years of age at the time of his offense.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.

3.  Notwithstanding the supporting statements provided by the applicant, post-service conduct alone is not normally a basis for upgrading a discharge.  

4.  Based on his record of indiscipline and an extensive history of being absent without leave, his service clearly did 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 an upgrade of his 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)                                         AR20120000585



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120000585



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1