IN THE CASE OF:
BOARD DATE: 15 November 2012
DOCKET NUMBER: AR20120009321
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, that his undesirable discharge (UD) be upgraded to an honorable or general discharge.
2. The applicant states that he was told to accept the discharge, but he did not fully understand the circumstances. He further states that his discharge was based totally on prejudicial information in the late 1960s. He was not guilty of ever leaving his post or failure to perform his duties.
3. The applicant provides two hand-written letters explaining his application and three third-party letters 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was inducted in Dallas, Texas on 25 August 1965. He completed basic training and advanced individual training as a light weapons infantryman at Fort Polk, Louisiana and airborne training at Fort Benning, Georgia before being assigned to Fort Benning for his first and only duty assignment.
3. On 30 March 1966, nonjudicial punishment was imposed against him for being derelict in the performance of his duties.
4. The facts and circumstances surrounding the applicants administrative discharge are not present in the available records as they were loaned to the Veterans Administration in Waco, Texas on 24 March 1975. However, his records do contain a duly-authenticated DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows that he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with a UD. He had served
1 year, 8 months, and 25 days of active service.
5. There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations.
6. 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, type of discharge normally given under the provisions of this chapter, the loss of veteran's 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 an individual who was discharged for the good of the Service.
7. 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.
8. 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. In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for discharge 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 before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.
3. The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances, especially given that in order to request a discharge under chapter 10, individuals had to be charged with an offense or offenses for which the authorized punishment included a punitive discharge (felony offense). His service simply does not appear to rise to the level of under honorable conditions.
4. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.
5. Accordingly, there does not appear to be a basis to grant the applicants request for an upgrade of his 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) AR20120009321
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20120009321
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2012 | 20120012573
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his discharge under other than honorable conditions be upgraded to a general discharge. There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations.
ARMY | BCMR | CY2014 | 20140013142
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his discharge under other than honorable conditions be upgraded to at least a general discharge. The available records also show that after consulting with defense counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.
ARMY | BCMR | CY2011 | 20110010384
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his discharge under other than honorable conditions be upgraded to an honorable discharge for medical reasons. The appropriate authority approved his request for discharge on 4 November 1994 and directed his discharge under other than honorable conditions.
ARMY | BCMR | CY2014 | 20140021261
The applicant requests that his undesirable discharge be upgraded to an honorable discharge. The applicant states that he served honorably throughout his service and he volunteered for Vietnam. On 16 August 1971, after consulting with defense counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.
ARMY | BCMR | CY2013 | 20130009189
The applicant again went AWOL from 3 to 8 January 1990; however, the record is silent as to the punishment imposed for that offense. The applicant went AWOL on 10 August 1990 and remained absent in a desertion status until he surrendered to military authorities at Fort Benning, Georgia on 27 February 1992, 1 year, 5 months, and 17 days later. On 14 April 1992, the appropriate authority approved his request for discharge and directed the applicant be given an under other than honorable...
ARMY | BCMR | CY2006 | 20060003676C070205
There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand...
ARMY | BCMR | CY2011 | 20110015910
The applicant requests that his discharge under other than honorable conditions be upgraded to a general discharge. He goes on to state that he completed 15 years of military service. 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.
ARMY | BCMR | CY2012 | 20120022821
IN THE CASE OF: BOARD DATE: 2 July 2013 DOCKET NUMBER: AR20120022821 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his undesirable discharge be upgraded to a general discharge.
ARMY | BCMR | CY2004 | 20040011136C070208
His punishment consisted of a reduction to the pay grade of E-2 and a forfeiture of pay (both suspended until 9 October 1981, extra duty and restriction for 7 days. There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser...
ARMY | BCMR | CY2008 | 20080010534
He again went AWOL on 14 July 2006 and remained absent in desertion until he surrendered to military authorities at Fort Benning on 14 September 2006 and was transferred to Fort Knox on 15 September 2006, where charges were preferred against him for the AWOL offenses. On 18 September 2006, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. ...