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Decision Text

ARMY | BCMR | CY2012 | 20120005034
Original file (20120005034.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20120005034 


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 that his undesirable discharge be upgraded.

2.  The applicant states he cannot remember exactly, but recalls being told his discharge would be changed 6 months after his release date.

3.  The applicant provides no additional documentation.

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.  On 26 November 1969, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11D (Armor Reconnaissance Specialist).

3.  On 11 April 1970, the applicant departed Fort Knox, Kentucky for duty in Europe.

	a.  On 2 May 1970, he was assigned as a scout observer with C Troop, 
3rd Squadron, 12th Cavalry Regiment.

	b.  On 15 August 1970, he was advanced to private first class, pay grade E-3.

	c.  He accepted the following nonjudicial punishments (NJPs):

* 10 October 1970: dereliction in duty for failing to comply with special orders for his guard post
* 8 February 1971: sleeping on guard duty
* 8 February 1971: being absent without authority from guard mount

	d.  On 22 March 1971, the applicant's commander approved a bar to reenlistment.  The basis for this action was his unsatisfactory conduct and efficiency and receipt of two NJPs.

4.  Records show that charges were preferred on 25 March 1971; however, they are not in the available records.  On 26 March 1971, an additional charge was preferred against the applicant for committing an assault upon another Soldier while in a German beer garden by striking him with a club.

5.  The discharge packet is missing from his military records.  However, a memorandum for record shows that the applicant's troop commander, squadron commander, and brigade commander each had recommended approval of his discharge with an undesirable discharge.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was administratively discharged on 30 April 1971, under the provisions of Army Regulation 600-200, chapter 10, for the good of the service.  His service was characterized as under conditions other than honorable.  He had completed 
1 year, 5 months, and 5 days of creditable active duty service.

6.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

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

	a.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive 


discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  At the time, an undesirable discharge was normally given.

	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 (emphasis added), 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 contends that his undesirable discharge should be upgraded because he was told his discharge would be changed 6 months after his release date.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  The limited documentary evidence in the applicant's record shows that he had been charged with striking another Soldier with a club while in a German beer garden.  This type of behavior clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

4.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.

5.  In view of the foregoing, the applicant's request should be denied.



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)                                         AR20120005034





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ABCMR Record of Proceedings (cont)                                         AR20120005034



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