IN THE CASE OF:	  

		BOARD DATE:	  16 August 2012

		DOCKET NUMBER:  AR20120003497 


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:

* He was wrongfully discharged because of an individual who had a grudge against him
* The individual told him he would get even with him because he (the applicant) walked in on them while they were doing drugs in the barracks and he reported the action
* He was harshly accused despite receiving multiple letters of appreciation and commendation
* He was also going through a divorce at the time and he did not care about his Army career
* He also filed paperwork to serve in Vietnam at the time but he was turned down due to an ear condition which occurred while he was on active duty
* He regrets not having stayed in and faced the court-martial
* He had had a clean record while in civilian life but would have preferred to have been retired from the service

3.  The applicant provides his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge/Report of Separation from Active Duty) for the periods ending 21 June 1973, 26 August 1975, and 1 October 1979.


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 (RA) on 13 April 1971 and he held military occupational specialty (MOS) 11E (Armor Crewmember).  He served in Germany from September to December 1971.

3.  On 17 April 1972, at Fort Knox, KY, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave from 3 to 11 April 1972.

4.  He was honorably discharged on 21 June 1973 for the purpose of immediate reenlistment in the RA.  His DD Form 214 for this period of service shows he was awarded the National Defense Service Medal.

5.  He reenlisted in the RA on 22 June 1973 and served in Germany from July 1972 to April 1976.  While in Germany, on 30 May 1974, he accepted NJP under the provisions of Article 15 of the UCMJ for driving a vehicle while drunk.

6.  He was honorably discharged on 26 August 1975 for the purpose of immediate reenlistment in the RA.  His DD Form 214 for this period of service does not show any awards or decorations.  

7.  He reenlisted in the RA on 27 June 1975 and he again served in Germany from on or about February 1978 to on or about September 1979.  Again, while in Germany, he accepted NJP under the provisions of Article 15 of the UCMJ on/for:

* 13 July 1978, stealing property from another Soldier
* 2 March 1979, stealing property from an individual

8.  On 8 January 1979, he received a letter of reprimand from his battalion commander after having been involved in a fight with another noncommissioned officer in a public establishment.  

9.  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.  Orders 239-19, issued by Headquarters, U.S. Army Regional Personnel Center, Baumholder, Germany, on 12 September 1979, ordering his reassignment to the U.S. Army Separation Transfer Point, Fort Dix, NJ, effective 25 October 1979 for the purpose of separation processing under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), with an Other Than Honorable Discharge Certificate. 

	b.  A duly-constituted DD Form 214 that shows he was discharged in the rank/grade of private/E-1 on 1 October 1979 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 4 years, 1 month, and 5 days of active service during this period and he had 4 years, 4 months, and 5 days of prior active service.  

10.  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.

11.  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 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.

	b.  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 1 October 1979 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 him 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 his rights were fully protected throughout the separation process.  He has provided no evidence that would indicate the contrary.  Further, it is presumed that his discharge accurately reflects his overall record of service during his last enlistment.

3.  With respect to his arguments, he did not provide any independent and verifiable evidence to corroborate his contentions.  He could have elected a court-martial if he believed he was innocent of the alleged charges.  

4.  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)                                         AR20120003497





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ABCMR Record of Proceedings (cont)                                         AR20120003497



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