BOARD DATE:	  21 August 2012

		DOCKET NUMBER:  AR20120004379 


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 undesirable discharge to an honorable discharge.

2.  The applicant states, in effect, he was young and immature at the time and was exposed to drugs and alcohol while in Germany.  He states he had no advocate to advise him of his rights and he accepted the undesirable discharge to get out of a dangerous situation.  He states he was involved in a racially-driven fight.  He was forced to defend himself and was placed in the stockade for defending himself.  He also states he desires to obtain medical benefits from the Department of Veterans Affairs.

3.  The applicant provides a two-page letter explaining his application, four third-party statements of support, and a copy of his résumé.

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 in Philadelphia, Pennsylvania, at the age of 19 on 14 August 1970 for a period of 3 years.  He was transferred to Fort Jackson, South Carolina to undergo training.

3.  On 11 September 1970, nonjudicial punishment was imposed against him for sleeping on security guard duty.

4.  He completed his training as a light vehicle driver and was transferred to Germany on 17 February 1971.

5.  On 26 July 1971, charges were preferred against the applicant for two specifications of assaulting two other Soldiers, being disrespectful in language and deportment toward a superior commissioned officer (company commander), and communicating a threat to a superior commissioned officer.

6.  On 5 August 1971 after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – General Provisions for Discharge and Release), chapter 10.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He also declined the opportunity to submit a statement in his own behalf.

7.  On 24 September 1971, the appropriate authority (a lieutenant general) approved his request for discharge and directed issuance of an Undesirable Discharge Certificate.

8.  Accordingly, he was discharged on 8 October 1971 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with the issuance of an undesirable discharge.  He completed 1 year, 1 month, and 25 days of total active service.

9.  A review of his official records shows he served in two transportation companies while in Germany and he received unsatisfactory conduct and 


efficiency ratings from his commanders.  His records indicate he was a weekly visitor to the commander’s office for counseling or punishment and he was unable to work with other members of the unit.

10.  On 8 August 1972, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and he contended that his discharge was unjust because he was not represented by counsel.  The ADRB determined that his discharge was both proper and equitable and voted unanimously to deny his request on 3 December 1976.

11.  On 6 November 1976, he again applied to the ADRB for an upgrade of his discharge under the Department of Defense Special Discharge Review Program (SDRP).  He contended at that time that he was unaware of the type of discharge he was to receive because he was in the post stockade at Mannheim and did not have legal counsel.

12.  On 22 March 1979 after careful consideration of his records and the available evidence, the ADRB determined that his discharge was both proper and equitable under the circumstances and again voted to deny his request.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the characterization of service he or she might receive.  An undesirable discharge was normally considered appropriate at the time of the applicant's discharge.

14.  Army Regulation 635-200, paragraph 3-7a currently in effect, 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.

15.  Army Regulation 635-200, paragraph 3-7b currently in effect, 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'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.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence or mitigating circumstances before a trial by court-martial, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

3.  The applicant's contentions and supporting documents have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the serious nature of his misconduct.  His service simply did not rise to the level of an honorable or a general discharge and the Board does not upgrade discharges solely for the purpose of qualifying individuals for benefits.

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)                                         AR20120004379



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ABCMR Record of Proceedings (cont)                                         AR20120004379



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