IN THE CASE OF:	  

		BOARD DATE:	  6 June 2013

		DOCKET NUMBER:  AR20120020823 


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 under other than honorable conditions discharge be upgraded to general under honorable conditions.

2.  He states he injured his back while he was in Germany and was not able to work.  He added he gave his medical records to the Judge Advocate General (JAG) office who recommended he sign a chapter 10 which he opines was a mistake.  He says he should have stood up for what is right.

3.  He provides DD Form 214 (Certificate of Release or Discharge from Active Duty) and five supporting statements. 

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 U.S. Army Reserve on 22 April 1976.  On 2 July 1979 he was ordered to active duty.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on two separate occasions:

   a.  On 29 May 1980 for committing assault on a noncommissioned officer on  7 December 1979 by cutting him on the shoulder with a pool cue.

   b.  On 5 September 1980 for willfully and unlawfully destroying the property of an unknown individual by flushing it down the commode on 16 July 1980; for failing to go at the time prescribed to his appointed place of duty on 24 and 
25 July 1980; for willfully disobeying a lawful order on 16 July 1980; and for being absent without leave (AWOL) from 31 July to 20 August 1980.
   
4.  The applicant's record is void of any medical documentation that indicates he injured his back.

5.  The charge sheet pertaining to the applicant’s discharge proceedings under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial is not contained in his available military records.  However, his records contain a DA Form 4187 (Personnel Action) that indicated he was AWOL since 7 November 1980 and was dropped from the unit rolls on 6 December 1980.

6.  His records also contain a chapter 10 packet that shows on 24 March 1981, he consulted with counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.

7.  In his voluntary request for discharge, he indicated he was making the request of his own free will and had not been subjected to coercion whatsoever by any person.  He understood if his request were accepted he could receive a discharge under other than honorable conditions and that by submitting his request he was admitting he was guilty of the charges against him.  He further acknowledged he understood if he received a discharge under other than honorable conditions, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.  The applicant elected not to provide a statement on his behalf.

8.  On 6 April 1981, the appropriate authority approved his request and directed the issuance of a discharge under other than honorable conditions.

9.  In a letter, Subject:  Medical Examination for Separation, dated 21 April 1981, the commander stated the applicant elected not to undergo a medical examination.

10.  On 4 May 1981, he was discharged accordingly.  His DD Form 214 shows he received an under other than honorable conditions character of service.  It also shows he completed 1 year, 5 months, and 28 days of net active service during this period with lost time from 31 July to 19 August 1980 and 7 November 1980 to 21 February 1981.

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  The supporting statements from a member of the Jay Outreach Church and four close friends speak highly of the applicant's honesty and dependability.  The author from the outreach church stated the applicant completed the eight-month outreach program with no problems.  He offered they have never had any type of problems with the applicant at anytime during the program or since returning to the community.  One author said she has known the applicant for more than 30 years.  She added the applicant was a quick learner and was interested in improving his many skills.  Another author offered that she got to know the applicant when she commissioned him to paint her home.  She said the work was professionally done and he was very honest and hard working.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.

	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.  The applicant argues, in effect, that his discharge should be upgraded because he injured his back and JAG "forced" him to sign a chapter 10.  Although the charge sheet is not available, the chapter 10 packet confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  There is no evidence and he has not provided any to substantiate his injury.  Additionally, in his request for chapter 10, he indicated he was making the request of his own free will and had not been subjected to coercion whatsoever by any person.

2.  Although the applicant has provided numerous supporting statements attesting to his dependability and his outstanding qualities, good post-service conduct alone is not a basis for upgrading a discharge.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general 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)                                         AR20120020823





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ABCMR Record of Proceedings (cont)                                         AR20120020823



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