IN THE CASE OF:	  

		BOARD DATE:	  16 August 2012

		DOCKET NUMBER:  AR20120002731 


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 his traditional native (Navajo) lifestyle is very different from the military and western lifestyle he encountered when he entered military service.

	a.  The difficulty he had in transitioning his lifestyle, along with peer pressure in the military, caused him mental hardship and duress.  As a result, he resorted to using drugs and alcohol.  

	b.  He now recognizes that his actions affected his behavior and well-being. He no longer resorts to this behavior and he is a contributing member of his tribe.

3.  The applicant provides no additional documentary evidence in support of his application.

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 19 April 1977 for a period of
3 years.  He was awarded military occupational specialty (MOS) 12B (Combat Engineer).

3.  The applicant was assigned overseas to Germany on 12 August 1977.

4.  On 19 June 1978, the applicant received nonjudicial punishment for having in his possession two smoking pipes and a film canister containing residue of marijuana in the hashish form.

5.  The applicant was granted ordinary leave on 10 December 1978.

6.  On 24 October 1979, the applicant surrendered to military authorities at Fort Carson, CO.

7.  Court-martial charges were preferred against the applicant for being absent without leave (AWOL) from 9 February to 24 October 1979.

8.  The applicant consulted with legal counsel and he voluntarily requested discharge in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	a.  He was advised that he might be discharged under other than honorable conditions, 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 Under Other Than Honorable Discharge.

	b.  He was also advised that he could submit any statements he desired in his own behalf.  The applicant submitted a statement with his request wherein he indicated he committed the offense for which he was charged because of "hardship at home."  He added that he wanted out of the Army.

	c.  The applicant and his counsel placed their signatures on the document.

9.  The applicant's immediate and intermediate commanders recommended approval of the request for discharge with an Under Other Than Honorable Conditions Discharge Certificate.

10.  The separation authority approved the applicant's request for discharge and directed he receive an Under Other Than Honorable Conditions Discharge Certificate.

11.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 10 December 1979 in accordance with Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.

	a.  He had completed 1 year and 8 days of active service.

	b.  He had 286 days of time lost under Title 10, U.S. Code, section 972.

12.  A review of the applicant's military personnel records failed to reveal any evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

	a.  Chapter 10 shows 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.

	b.  Chapter 3, 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.  Chapter 3, 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 applicant contends his under other than honorable conditions discharge should be upgraded because of the difficulty he had in transitioning to the military lifestyle and, since his discharge, he has been a contributing member of his tribe.

2.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offense that led to his discharge outweighs his overall record of service during the period of service under review. Considering all the facts of the case, the characterization of service was appropriate and equitable.

3.  The applicant elected to request discharge in lieu of being court-martialed.

	a.  He had a total of 286 days (more than nine months) of lost time and he completed about 12 months of his 3-year enlistment obligation.

	b.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general discharge.  

4.  Considering the applicant satisfactorily completed training and was awarded MOS 12B, and that he had completed more than one year of honorable service before the first offense of record, his contention that he had difficulty in transitioning to the military lifestyle is not supported by the evidence of record.

5.  The applicant's contention that he has been a contributing member of his tribe was considered.  However, it is insufficient to mitigate his misconduct or support an upgrade of his discharge.

6.  Therefore, there is no basis for granting the requested relief.


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)                                         AR20120002731



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ABCMR Record of Proceedings (cont)                                         AR20120002731



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