IN THE CASE OF:	   

		BOARD DATE:	  25 April 2013

		DOCKET NUMBER:  AR20120018370 


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 an upgrade of his discharge. 

2.  The applicant states no one investigated the problems he encountered during his stay at Company A, 1st Battalion, 67th Armor Regiment, 2nd Armored Division, Fort Hood, TX.  He further states he utilized the chain of command to address these issues, but no action was taken.  He attests that he testified as a victim of an assault in a case that resulted in a conviction.  That is when the harassment, thefts, and break-ins began.  His requests for transfer to another unit were denied.  Additionally, his requests for his complete medical and other records from his old unit have failed.

3.  The applicant provides a self-authored statement.

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 on 23 May 1972 and possessed military occupational specialty 11E (Armor Crewman).  The highest rank/grade he attained while serving on active duty was private/E-2.  However, at the time of his separation he held the rank/grade of private/E-1.

3.  The applicant's record contains:

	a.  three DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) which show he accepted nonjudicial punishment for violating Article 86 of the UCMJ by departing his unit in an absent without leave (AWOL) status on three separate occasions for the following periods:

* from 4 to 20 September 1972
* from 2 to 8 July 1973
* from 23 to 25 October 1973

	b.  a Bar to Reenlistment packet initiated on 29 October 1973.  The applicant acknowledged reading and understanding his company commander's allegations action and elected not to make a statement in his own behalf.   The Bar to Reenlistment was reviewed and approved on 6 November 1973.  The applicant's company commander cited the following reasons as the catalyst for this action:

* the applicant had clearly demonstrated he was unfit for further service
* he had been a frequent disciplinary problem, requiring frequent counseling and close supervision
* his military appearance, personal hygiene, maintenance of clothing and equipment, and his military bearing were below standards
* he had been punished under the provisions of the UCMJ
* his conduct and efficiency ratings were unsatisfactory
* if permitted to reenlist, he would bring further discredit upon his unit and the U.S. Army

	c.  a DD Form 458 (Charge Sheet), initiated on 22 February 1974, that shows court-martial charges were preferred against him for one specification of violating Article 86 of the UCMJ by departing his unit in an AWOL status on or about 
27 December 1973 and remaining so absent until on or about 14 February 1974.

4.  On 26 February 1974, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written 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.  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected to submit a statement in his own behalf.  In his statement, he stated he believed he should be discharged from the Army for the good of the service because he was not fit to be in the military service due to a nervous condition.

5.  The applicant's chain of command recommended approval of his request with the issuance of an Under Other than Honorable Conditions Discharge Certificate.
On 15 March 1974, the separation authority approved the applicant's discharge request and directed that he be reduced in grade to the lowest enlisted grade and discharged under the provisions of Army Regulation 635-200, chapter 10 and furnished an Undesirable Discharge Certificate. 

6.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that on 19 March 1974 he was discharged accordingly.  He was issued an Undesirable Discharge Certificate.  He completed 1 year, 7 months, and 16 days of creditable active service.  He had 73 days time lost due to his four periods of AWOL.

7.  His record is void of any evidence and he did not provide any evidence which shows he was assaulted or subjected to any type of harassment, theft, or break-in.

8.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge under other than honorable conditions to an honorable discharge.  He offered no evidence or argument in support of his petition to the ADRB.

9.  On 26 March 1980, the ADRB informed the applicant that after careful consideration of his military records and all other available evidence, they had determined he was properly and equitably discharged.  Accordingly, the Secretary of the Army had directed that he be advised that his request for a change in the character and/or reason of his discharge had been denied.

10.  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, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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 to an individual who was discharged for the good of the service at the time.

11.  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.

12.  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 contention that his record should be corrected by upgrading his discharge was carefully considered and determined to lack merit.

2.  His record is void of any evidence and he did not provide any evidence which shows he was assaulted or subjected to any type of harassment, theft, or break-in.  

3.  His record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10 to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20120018370





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ABCMR Record of Proceedings (cont)                                         AR20120018370



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