IN THE CASE OF:	  

		BOARD DATE:	  16 April 2013

		DOCKET NUMBER:  AR20120017088 


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 be upgraded to an honorable discharge.  

2.  The applicant states he has matured and he needs appropriate housing and medical treatment.

3.  The applicant provides:

* three 2009 training certificates
* 2009 High School Diploma Equivalency Certificate
* 2011 Six-Month Transitional Rehabilitative Program Certificate of Achievement

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 on 10 March 1970.  He completed training and was awarded military occupational specialty 70A (Clerk).  He was advanced to pay grade E-2 on 10 July 1970.  He arrived in Guam on 30 July 1970.

3.  On 17 August 1970, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to report to duty on 16 August 1970 and being absent without leave (AWOL) and failing to be in reveille formation on 17 August 1970.

4.  On 3 December 1970, he was convicted by a special court-martial of wrongfully appropriating an automobile, the property of another Soldier; breaking restriction on 13 October 1970; and wrongfully appropriating an automobile, the property of the U.S. government, on 18 November 1970.  The court sentenced him to confinement at hard labor and a forfeiture of pay.

5.  On 12 July 1971, he accepted NJP under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty on 24, 28, and 29 June 1971 and failing to obey a lawful order on 28 June 1971

6.  On 28 July 1971, the applicant's company commander issued the applicant a Certificate of Unsuitability for Reenlistment.  The company commander stated:

	a.  The applicant had been assigned to that unit for five months.  He had a record of misconduct as evidenced by one court-martial and one Article 15.  Offenses ranged from being AWOL to misappropriation of a government vehicle and damaging government property.  

	b.  He had counseled the applicant on numerous occasions and he had advised the applicant of the adverse consequences which might ensue from that or similar personnel actions.  That had been to no avail.  The applicant's conduct and efficiency were unsatisfactory.

7.  On the same day the applicant acknowledged receipt of the certificate of unsuitability and elected not to submit a statement in his own behalf. 

8.  On 29 July 1971, he again accepted NJP under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty on 29 July 1971.

9.  The Certificate of Unsuitability for Reenlistment was approved on 10 August 1971.

10.  On 18 August 1971, court-martial charges were preferred against him for two specifications of failing to go to his appointed place of duty on 12 and 17 August 1971 and two specifications of breaking restriction on 11 and 16 August 1971.  

11.  On 7 September 1971, additional court-martial charges were preferred against him for two specifications of being AWOL from 20 August to 3 September 1971, four specifications of failing to obey a lawful order/general regulation by failing to maintain control of a vehicle causing a traffic accident, failing to report a traffic accident, and leaving the scene of a traffic accident.

12.  On 8 September 1971, after consulting with counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10, for the good of the service - in lieu of court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He further acknowledged he understood as a result of the issuance of such a discharge he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits administered by the Veterans Administration (VA).  He waived his rights and elected not to submit a statement in his own behalf.

13.  On 10 September 1971, the applicant’s company commander recommended approval of the applicant’s request and issuance of an undesirable discharge.  

14.  On 22 September 1971, the appropriate separation authority approved the applicant's request for discharge for the good of the service and directed the issuance of an Undesirable Discharge Certificate.

15.  On 2 October 1971, he was discharged in pay grade E-1 under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial, with an Undesirable Discharge Certificate.  He was credited with completing 1 year, 6 months, and 8 days of net active service and lost time from 20 August through 3 September 1971.

16.  On 28 September 1978, the Army Discharge Review Board denied his request for an upgrade of his discharge.

17.  He provides copies of documents which show he completed training and received his High School Diploma Equivalency Certificate 2009 and completed a six-month rehabilitative program in 2011.

18.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

	a.  Chapter 10 that a member who had 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 in lieu of trial by court-martial at any time after charges had been preferred.  An undesirable discharge was normally considered appropriate at the time.

	b.  Paragraph 3-7a that an honorable discharge was a separation with honor. 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 inappropriate.

	c.  Paragraph 3-7b that 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 request for an upgrade of his undesirable discharge and the documents he submitted were carefully considered.  However, his record contains an extensive history of misconduct including conviction by a special court-martial, three Article 15s, and a bar to reenlistment.  

2.  He was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  He has provided no evidence or a convincing argument to show his discharge should be upgraded and his military record contains no evidence that would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable or a general discharge.

4.  Without evidence to the contrary, it appears his administrative separation action was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.

5.  His desire to have his undesirable discharge upgraded so that he can qualify for benefits is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for burial, medical, and/or other benefits administered by the VA, State, or Federal agencies.

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)                                         AR20120017088





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ABCMR Record of Proceedings (cont)                                         AR20120017088



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