IN THE CASE OF:	  

		BOARD DATE:  12 July 2012

		DOCKET NUMBER:  AR20120002317 


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 under other than honorable conditions discharge.

2.  The applicant states that during his Article 15 hearing he was reduced to E-3 but the punishment was suspended for 90 days.  He received no other nonjudicial punishment and his rank was not restored to E-4 after 90 days.  His character of service is shown as under other than honorable conditions because of this mistake.  He should have received an honorable discharge.  He received the Article 15 for leaving his guard post.  But, he explained to his commander that he only left to relieve himself a few feet away due to food poisoning.  He also believes the Army discharged him because he was overweight and he had financial problems with his wife who was stateside writing bad checks.  This reflected poorly on him.  Finally, he did not understand at the time the impact this discharge would have on him.  

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* Three letters of support/character reference
* Medical document and a listing of medication

 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 on 28 February 1974 and he held military occupational specialty (MOS) 05E (Voice Radio Operator).  

3.  He served in Germany from 16 September 1974 to 17 February 1976.  He was promoted to E-3 on 19 December 1974 and E-4 on 1 September 1975.  He was awarded the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle and Grenade Bars.

4.  On 4 September 1975, his immediate commander initiated a Bar to Reenlistment Certificate against him for writing 14 bad checks, not settling his debt, and failing to pay his debt.  He was furnished with a copy of this bar but he elected not to submit a statement on his own behalf.  The bar was ultimately signed by the appropriate authority.

5.  On 11 November 1975, he accepted NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty (guard duty).  His punishment included a reduction to E-3, suspended for 90 days.

6.  The complete facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his records contain the following documents:

	a.  Special Order Number 86, issued by Headquarters, U.S. Army Europe and Seventh Army, on 26 March 1976, ordering his discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, effective 1 April 1976.

	b.  Memorandum, dated 2 April 1974, informing him of the narrative reason for his separation as conduct triable by a court-martial.
	c.  Memorandum, dated 2 April 1976, wherein he acknowledged that the reason for his separation was a discharge under the provisions of chapter 10 of Army Regulation 635-200, and he requested a copy of his DD Form 214.

	d.  A duly-constituted DD Form 214 that shows he was discharged on 2 April 1976 under the provisions of Army Regulation 635-200, chapter 10, in lieu of a court-martial with an under other than honorable conditions character of service.  This form also shows he completed 2 years, 1 month, and 5 days of creditable active service.

7.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitation.

8.  He submitted three character reference letters and/or letters of support from his spouse and other individuals.  They all comment on his work ethics and help to others.  The authors also comment about his ongoing medical issue and the need for medical care.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 discharge under other than honorable conditions is normally considered appropriate.

	a.  Paragraph 1-14 of the regulation in effect at the time stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade.

	b.  Paragraph 3-7a states 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 states 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 applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged on 2 April 1976 under the provisions of Army Regulation 635-200, chapter 10, in lieu of a court-martial with an under other than honorable conditions character of service. 

2.  The issuance of a discharge under the provisions of Army Regulation
635-200, chapter 10, required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no evidence that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service during his last enlistment.   

3.  With respect to his rank/grade, when the separation authority approved the applicant's voluntary discharge in lieu of trial by court-martial, he would have ordered the applicant's reduction to the lowest enlisted grade as required by regulation.  This grade is correctly shown on the applicant's DD Form 214 and there is no reason to change it.

4.  The applicant's current medical circumstances are noted.  However, they are not sufficiently mitigating in granting him the requested relief.  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.  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)                                         AR20120002317



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ABCMR Record of Proceedings (cont)                                         AR20120002317



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