IN THE CASE OF:	  

		BOARD DATE:  5 February 2013

		DOCKET NUMBER:  AR20120012122 


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 his undesirable discharge (UD) be upgraded to an honorable discharge.  

2.  He states that he felt he was good Soldier; however, he had difficulty adapting.  He believes that he should have been granted an honorable discharge because of his inability to adapt to military life.  

3.  He provides no additional evidence.

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 military record shows he enlisted in the Regular Army, in pay
grade E-1, on 31 October 1972, for 4 years.  He completed training and was 
awarded military occupational specialty 11H (Infantry Indirect Fire Crewman).  He was advanced to pay grade E-3 on 1 April 1974.  He served in Hawaii from 30 August 1974 through 28 October 1976.

3.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on:

* 18 June 1973 – for wrongfully possessing 2.0 grams of marijuana
* 7 November 1973 – for being absent without leave (AWOL) from his unit from 23 October to 1 November 1973

4.  On 6 December 1974, he again accepted NJP under Article 15, UCMJ, for wrongfully possessing one ounce of marijuana.  

5.  He was reported AWOL on 26 March 1975 and dropped from Army rolls on 
25 April 1975.  He was returned to military control on 3 May 1975.

6.  He was again reported AWOL on 7 July 1975 and dropped from the rolls on the same date.  He was returned to military control on 2 September 1975.

7.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains a DD Form 214 (Report of Separation from Active Duty) that shows he was discharged in pay 
grade E-1 on 1 October 1975 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service in lieu of trial by court-martial.  He was credited with completing 2 years, 8 months, and 26 days of net active service and 65 days of time lost.

8.  His record also contains a Report of Separation memorandum which shows he was separated on 1 October 1975 for conduct trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He was assigned a reenlistment eligibility (RE) code of RE-4. 

9.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its statute of limitations.

10.  Army Regulation 635-200, in effect at the time, set forth the policies and procedures for the separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 10 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 are preferred.  A UD was normally considered appropriate.
	b.  Paragraph 3-7a stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's available military record is void of the facts and circumstances which led to his voluntary discharge.  However, his DD Form 214 shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service in lieu of trial by a court-martial on 1 October 1975.

2.  His contentions have been noted; however, the issuance of a discharge under the provisions of Army Regulation 635-200, chapter 10, required him to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provided no information that would indicate the contrary.

3.  He has provided insufficient evidence or argument to show his discharge should be upgraded and his military record contains no evidence which would warrant an upgrade of his discharge to a general or fully honorable 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)                                         AR20120012122



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120012122



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1