IN THE CASE OF:	  

		BOARD DATE:	  3 July 2012

		DOCKET NUMBER:  AR20120001029 


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 his under other than honorable conditions discharge be upgraded to a general or an honorable discharge.

2.  He states he was a ward of the state with a background of being punished and constantly in solitary confinement.  He was pressured into enlisting in the Army.  While in the Army, he was singled out and treated unjustly by his superiors.  He was asked the question of how he likes the Army and responded that he would rather be in the Navy.  He maintains that because of his response, he received three Article 15s, three letters of reprimand, and a threat of receiving a general court-martial, followed by weeks in the "Soldier School."  He concludes it was obvious to him that he was being discriminated against and, therefore, he left. 

3.  He does not provide any 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 24 July 1975.

3.  On 10 December 1975, charges were preferred against him for being absent without leave (AWOL) from 18 August 1975 to 20 November 1975.

4.  On 11 December 1975, he consulted with counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

5.  In his voluntary request for discharge, he indicated he understood if his request was accepted he could receive an Undesirable Discharge Certificate and that by submitting his request he was admitting he was guilty of the charges against him.  He further acknowledged he understood if he received an undesirable discharge, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.  

6.  On 23 December 1975, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that he be issued an Undesirable Discharge Certificate.

7.  His DD Form 214 (Report of Separation from Active Duty) shows that on 
30 December 1975 he was discharged with an undesirable discharge characterized as under other than honorable conditions.  He completed 2 months and 4 days of active service with 95 days lost under Title 10, U.S. Code, section 972.

8.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  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, 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.  A discharge under other than honorable conditions would normally be directed for an individual who was discharged for the good of the service.

   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 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 evidence of record confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  The record further shows he admitted he was guilty of being AWOL from 18 August 1975 to 20 November 1975.  The record also shows he voluntarily requested separation for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial.

2.  His record of service included over 95 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service as unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20120001029





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ABCMR Record of Proceedings (cont)                                         AR20120001029



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