IN THE CASE OF:	  

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20120008237 


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 that he served in Germany from April 1973 to December 1973, among a lot of racial tensions.  He states, in effect, that he was young and naive and was seen amongst some of the wrong crowds.  He further states that he was told if he voluntarily accepted an undesirable discharge, his discharge would be changed to honorable after six months.  

3.  The applicant provides no documents in support of his application.

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, and 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 17 November 1972.  His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  The applicant received nonjudical punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the following:

* 24 July 1973, absent from appointed place of duty before being released

* 28 July 1973, absent from appointed place of duty before being released

* 6 August 1973, absent without leave (AWOL) until 7 August 1973

* 7 September 1973, absent from appointed place of duty and failing to secure his weapon

4.  On 24 October 1973, charges were preferred against the applicant for violation of UCMJ for the following charges: 

* Charges  I: Violation of UCMJ, Article 128:  Two specifications of unlawfully striking a Soldier 

* Charge II:   Violation of UCMJ, Article 116:  Participating in a riot by unlawfully assembling with 20 others for the purpose of creating a public disturbance  to wit: instigate a riot 

* Charge III:  Violation of UCMJ, Article 91:  Disobeying a lawful order to remain in the platoon area

5.  On 9 November 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions (UOTHC) discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

6.  In his request for discharge, the applicant indicated he understood that by requesting a discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  On 19 November 1973, the separation authority approved the applicant’s request for discharge and directed he receive an Undesirable Discharge Certificate.  On 11 December 1973, the applicant was discharged accordingly.

8.  The DD Form 214 he was issued confirms he completed 1 year and 25 days of total creditable active military service with no lost time.

9.  The applicant applied to the Army Discharge Review Board and was denied on 16 October 1974, 13 October 1977, and 5 June 1981.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 states 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, at the time an undesirable discharge, UOTHC, was normally considered appropriate.

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 U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

2. During the period of service under review, the applicant accepted nonjudicial punishment on several occasions for acts of indiscipline. 

3.  The applicant was discharged under the provisions of Army Regulation     635-200, chapter 10, which was a voluntary request in lieu of trial by court-martial.  

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  Based on his record of indiscipline, the applicant’s service did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory.  Therefore, the applicant 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)                                         AR20120008237



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ABCMR Record of Proceedings (cont)                                         AR20120008237



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