IN THE CASE OF:	  

		BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120011015 


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 general discharge be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that there was no court-martial at Fort Ord, California, only an officer who asked him if he was sure that he wanted to request a discharge under chapter 10.  He goes on to state that he replied “yes” because he did not want to go to prison and his counsel told him that the only way to get out of the stockade or prevent going to prison was to submit such a request; however, he now knows differently.  He also states that his commander resented him and railroaded him out of the service for an offense that could have been handled differently and with punishment that fit the crime. 

3.  The applicant provides a two-page letter explaining his application, a copy of his Department of Veterans Affairs (VA) Rating Decision, a statement of facts he submitted to the Army Discharge Review Board (ADRB), copies of Daily Staff Journals, copies of his DD Forms 214 (Report of Separation from Active Duty),  a request for waiver of disqualification for reenlistment, copies of academic reports, a copy of his DA Form 873 (Certificate of Security Clearance and/or Security Determination), his bar to reenlistment, copies of certificates of training, a partial copy of his request for discharge under chapter 10, and documents related to his post-service conduct and employment.




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, though somewhat incomplete, show that he enlisted in the Regular Army on 13 May 1968 for a period of 3 years.  He completed his training as a supply clerk and was transferred to Germany.  On 13 May 1969, he reenlisted for a period of 3 years and assignment to Vietnam.

3.  He was transferred to Vietnam on 2 August 1969 and during the period of February to May 1970, nonjudicial punishment was (NJP) imposed against him on three occasions.  He departed Vietnam on 1 August 1970 and was transferred back to Germany.  He was promoted to the rank of sergeant on 13 April 1971.

4.  He was transferred to Fort Ord in September 1973 and on 27 February 1974, NJP was imposed against him for failure to go to his place of duty.

5.  On 25 April 1974, the applicant’s commander submitted a recommendation to bar the applicant from reenlistment.  He cited as the basis for his recommendation the applicant’s record of habitual misconduct based on his disciplinary record, the fact that he was pending trial by court-martial, repeated offense of failure to go to his place of duty, leaving his place of duty, dereliction of duty, and disobeying a lawful order from a commissioned officer.  He also indicated that the applicant had failed his military occupational specialty (MOS) test and had been relieved of his duties as unit supply sergeant due to his misconduct and inefficiency.

6.  On 7 June 1974, he was convicted by a special court-martial of disobeying a lawful order from a superior commissioned officer.  He was sentenced to a reduction to the pay grade of E-4 and a forfeiture of pay.

7.  On 7 August 1974, NJP was imposed against him for failure to go to his place of duty.
8.  The complete facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the VA.  However, his records show that charges were preferred against the applicant for being absent without leave (AWOL) from 13 August 1974 until he was apprehended and returned to military control on 2 September 1974.

9.  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.  He indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged he understood that he 
could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further stated he had been advised not to accept an undesirable discharge in the expectation that it would later be changed to a general or an honorable discharge because the likelihood of that ever occurring was extremely remote. 

10.  The appropriate authority approved his request for discharge and directed that he be furnished an undesirable discharge certificate.

11.  Accordingly, he was discharged under other than honorable conditions on    4 October 1974 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 6 years, 4 months and 1 day of active service.

12.  The applicant applied to the ADRB for an upgrade of his discharge on          9 December 1977 and was granted a personal appearance by that board.  His hearing was rescheduled and he failed to appear.  However, the ADRB conducted a review based on his records and voted to upgrade his undesirable discharge to a general discharge on 21 June 1979 based on his overall record of service and his service in Vietnam.  Accordingly, his undesirable discharge was voided and he was issued a General Discharge Certificate.

13.  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 VA 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.

   a.  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.

   b.  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.  Notwithstanding the actions of the ADRB, 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 and they are not sufficiently mitigating to warrant relief under the circumstances, especially given his repeated misconduct, even before he arrived at his last unit of assignment, and his rank at the time.  His service simply did not rise to the level of under honorable conditions.

4.  Accordingly, there appears to be no basis to grant his request for an upgrade of his discharge to fully honorable.



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)                                         AR20120011015





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120011015



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1