IN THE CASE OF:	  

		BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20120004030 


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 discharge be upgraded to honorable.

2.  The applicant states he believes he served honorably even though, at age 18, he did have a tendency to say things he should not have said.  He apologizes for any problems he may have caused.  He behaved badly because he was denied leave to be with his brother who had gotten burned so badly that he was not expected to live.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), Fort Polk Form 618 (Personnel Data Regarding Accused), and DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)).

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 31 January 1979.  He completed training, was awarded military occupational specialty 19F (cavalry scout), advanced to pay grade E-2, and was assigned to an armor unit at Fort Polk, Louisiana, where he reported on 27 July 1979.

3.  On 7 September 1979, the applicant received nonjudicial punishment (NJP) under the provisions Article 15, UCMJ, for 21 August 1979 offenses of willful disobedience of a noncommissioned officer (NCO) and disrespect to that NCO, and a 5 September 1979 offense of absence from his appointed place of duty.

4.  On 11 September 1979, charges were preferred against the applicant for disrespect to a lieutenant colonel, disrespect to a captain, disrespect to a command sergeant major, disrespect to a sergeant first class, disrespect to a staff sergeant, willful disobedience of a staff sergeant, communicating a threat to a sergeant first class and a staff sergeant, and communicating a threat to another sergeant first class.

5.  The lieutenant colonel who commanded the battalion provided the statements offered in support of the charges.  He related:

* on 4 September after a long weekend, the applicant called from Alexandria, LA, (about 50 miles away) to state he would be late returning because he was having car trouble; the applicant was considered absent from his appointed place of duty at that time
* the company commander contacted him the next day and informed him that he was absent from his appointed place of duty, but that he should find other transportation back to the base so he would not be apprehended for being absent without leave (AWOL)
* on 6 September, the company commander sent an NCO in a government vehicle to give the applicant a ride back to the base
* on 7 September, the applicant told the battalion commander several times that he wanted to get out of the Army and would do whatever it took to get released
* while he was being processed for transfer to correctional custody, he was repeatedly disrespectful to and threatened NCO's
* he then was AWOL and hitchhiked away from the area

6.  A mental status evaluation done in connection with his separation medical examination found the applicant's behavior passive.  He was fully alert and oriented.  He displayed a depressed mood, clear thinking, normal thought content, and good memory.  His rehabilitation potential was considered probable. There was no significant mental illness.  He was mentally responsible.  He could distinguish right from wrong and adhere to the right.  He had the mental capacity to understand and participate in the proceedings and met the standards for retention.

7.  The applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He stated he was aware of the requirements of military service.  He felt unable to comply with those requirements.

8.  The chain of command recommended approval of the applicant's request and the issuance of a discharge under other than honorable conditions.  The separation authority so directed.

9.  On 3 October 1979, the applicant was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial.  He completed 8 months and 3 days of creditable service.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version then in effect 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 Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.

	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 applicant states he behaved so badly because he was denied leave to be with his brother who had gotten burned badly that he was not expected to live.

2.  The circumstances surrounding the applicant's discharge seem pretty well documented, but there is no mention of the situation he now describes.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  The 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.  Furthermore, the applicant's discharge accurately reflects his overall record of service during his enlistment.

4.  In view of the foregoing there is no basis for granting the applicant's 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 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)                                         AR20120004030



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ABCMR Record of Proceedings (cont)                                         AR20120004030



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