IN THE CASE OF:	  

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20120001613 


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 his undesirable discharge (UD).

2.  The applicant states, in effect, he received a letter from the Army Discharge Review Board (ADRB), on 6 August 1976, which contained instructions for requesting an upgrade of his UD; however, he procrastinated and did not follow up on making the request.

3.  The applicant provides:

* Letter from the ADRB, dated 6 August 1976
* Letter, from The Servant Center, Greensboro, NC, dated 9 December 2011
* Two letters of reference
* Doctor's note, dated 30 November 2011

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 6 December 1974.  He completed the training requirements and he was awarded military occupational specialty 12B (Combat Engineer).  He was assigned to Fort Hood, TX from 15 May 1975 to 6 August 1976.

3.  His records show he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions between 20 August 1975 and 9 February 1976 for:

* Being absent without leave (AWOL) 
* Failure to report to duty on time
* Failure to report for extra duty on time

4.  His record contains a DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate), dated 27 January 1976, showing his commander recommended that he be barred from reenlistment.  This form cites his record of NJP, poor conduct and efficiency, and his continual demonstration of a total lack of suitability for military service.  Additionally, this form states he could not meet acceptable standards of personal appearance and performance, and he repeatedly failed to report for duty and perform assigned tasks.

5.  On 19 May 1976, court-martial charges were preferred against him for two specifications of being AWOL.

6.  On 1 June 1976, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge and the issuance of an Undesirable Discharge Certificate, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel and without coercion, 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.

7.  In this request for discharge he acknowledged he understood if his 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.

8.  On 18 June 1976, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.  Accordingly, he was discharged on 
6 August 1976.

9.  His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial on 6 August 1976 in the rank/grade of private/E-1 with a UD.  

   a.  His DD Form 214 further confirms that he had lost time from:

* 12 July through 25 July 1975
* 15 March through 18 March 1976
* 29 through 30 December 1975 
* 4 through 5 February 1976 
* 17 through 18 February 1976
* 27 March through 12 May 1976
* 31 December 1975 through 10 January 1976

   b.  This form further confirms he completed 1 year, 5 months, and 12 days of creditable active service with 81 days of lost time.

10.  There is no indication the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

11.  He provided a letter from The Servant Center, dated 9 December 2011, which outlines his treatment in the service house program, the positive progress he is making in the program, and requests his discharge be upgraded so he can attain medical benefits through the VA.

12.  He provided two letters of recommendation/character references which discussed his past problems with addiction and his work to overcome the addiction.  These letters also indicate that he has become a productive, positive, and successful member of society.

13.  He provided a doctor's note, dated 30 November 2011, which states he has been treated for major depression and addiction to drugs and alcohol.

14.  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 to an individual who was discharged for the good of the service.

	a.  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.

	b.  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.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that having been advised by legal counsel he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

2.  His record contains a long history of NJP under the provisions of Article 15 and extensive AWOL periods.  Based on his 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 unsatisfactory.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting an honorable or a general discharge in this case.
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)                                         AR20120001613



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ABCMR Record of Proceedings (cont)                                         AR20120001613



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