BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120012091 


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 to a discharge of honorable conditions.  

2.  The applicant states that he had one honorable period of service before the period in which he was discharged and he has been a good citizen since his discharge and believes his discharge should be upgraded.

3.  The applicant provides copies of his two DD Form 214s (Report of Separation from Active Duty).

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 enlisted in the Regular Army with a moral waiver in Montgomery, Alabama on 30 September 1970.  He completed his one-station unit training as a light weapons infantryman at Fort Polk, Louisiana and was transferred to Germany on 12 March 1971. 

3.  He departed Germany 4 months later on 22 July 1971 for assignment to Vietnam and arrived in Vietnam on 26 September 1971 for assignment as a security guard.

4.  On 4 July 1972, he reenlisted with a waiver of lost time for a period of 5 years and assignment to Fort Rucker, Alabama.

5.  He departed Vietnam on 26 September 1971 and was transferred to Fort Rucker, Alabama. 

6.  On 31 May 1973 nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty.

7.  On 24 April 1974 he was transferred to Germany.  He was promoted to the rank of sergeant on 7 May 1975.

8.  On 12 February and 17 April 1976 NJP was imposed against him for failure to go to his place of duty.

9.  On or about 1 November 1976, the applicant was arraigned and tried by a General court-martial of three specifications of the wrongful possession of heroin.  During the cross-examination of the applicant, the trial counsel made an improper reference to a pre-trial statement made by the applicant without first laying the proper foundation to establish the admissibility of the statement.  In a trial with members, the military judge granted the defense motion for a mistrial.

10.  The complete facts and circumstances of the applicant’s administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in Montgomery Alabama in 1977.  However, his records do show that on 14 December 1976, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  In his request 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 also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his behalf.

11.  The applicant’s company and battalion commanders recommended disapproval of his request; however, the brigade commander recommended approval of his request.

12.  On 15 December 1976 the appropriate authority (a major general) approved his request and directed that he be issued an Undesirable Discharge Certificate.

13.  Accordingly, he was discharged under other than honorable conditions on   10 January 1977 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 6 years, 3 months, and 8 days of total active service and had 3 days of lost time due to AWOL.

14.  There is no evidence in the available records to show that he ever applied to the ADRB for an upgrade of his discharge within that board’s 15-year statute of limitations.

15.  On 4 November 2002, while a defendant before the U.S. District Court in Alabama, the applicant authorized the release of his military records to officials of the Federal Probation System.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

17.  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.

18.  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 voluntary request for separation 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 discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.
 
3.  The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given the seriousness of his offenses 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.

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)                                         AR20120012091





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ABCMR Record of Proceedings (cont)                                         AR20120012091



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