BOARD DATE:	  1 November 2012

		DOCKET NUMBER:  AR20120007571 


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, in effect, an upgrade of his undesirable discharge.

2.  The applicant states he and his buddies went drinking in the woods after duty and before they knew it, it was morning.  They arrived at the mess hall for breakfast and were loud.  A second lieutenant (2LT) walked up to them and said something.  He doesn't remember what the 2LT said, but he responded by striking him with his fist.  He went to the stockade for 2 months and was court-martialed on an assault charge.  They said he had a weapon, but he did not.  He took a discharge out of the service not knowing, but as he got older he realized how real it was.  He is now 62 years old and is helping his sister keep their mother comfortable through her illness of Alzheimer's disease.  He has been through a lot since he left the service, odd jobs, drugs and alcohol, but no weapons offenses.

3.  The applicant provides a statement of support.

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 on 6 April 1972.  He was assigned to the 3rd Battalion, U.S. Army Engineer School Brigade, Fort Belvoir, VA, for advanced individual training (AIT).

3.  On 28 July 1972, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for falsifying a medical document to show he had been given 24 hours of bed rest.

4.  On 15 November 1972, he was convicted by a special court-martial of one specification of assaulting a 2LT on 18 September 1972.

5.  On 6 January 1973, he was reported absent without leave (AWOL) from his assigned unit and he was dropped from the rolls on 4 February 1973.

6.  On 20 April 1973, he was returned to military control at Fort Ord, CA.

7.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, the DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged for the good of the service in lieu of trial by court-martial (separation program number 246) on 10 May 1973 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, with an under other than honorable conditions character of service.  He completed 9 months and 28 days of net active service with 103 days of lost time.

8.  On 25 April 1979, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge and determined he had been properly discharged.

9.  The applicant provides a statement of support, dated 26 October 2011, wherein a case manager with Volunteers of America, Los Angeles, CA, stated the applicant displayed a high degree of integrity, responsibility, and ambition during meetings as a client.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time 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.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

11.  Army Regulation 635-200, 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.

12.  Army Regulation 635-200, 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's record is void of the specific facts and circumstances surrounding his discharge processing.  However, the available evidence shows he never completed AIT, received NJP for falsifying documents, was convicted by a special court-martial of assaulting an officer, and was AWOL for over 3 months before being returned to military control.

2.  He was subsequently charged with the commission of an offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service in lieu of trial by court-martial.

3.  It is presumed that he voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In the absence of evidence to the contrary, it is also presumed that his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

4.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct 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 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)                                         AR20120007571



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ABCMR Record of Proceedings (cont)                                         AR20120007571



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