BOARD DATE:	  1 August 2013

		DOCKET NUMBER:  AR20120022879 


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 upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states he enlisted during the Vietnam War and served honorably from 1965 to 1967.  He enlisted again in 1975 and other than a few mistakes in judgment, he served honorably as well.  Since his military service he has been a productive citizen and has participated in Veterans of Foreign Wars activities for over 20 years.

	a.  Since the events that led to his discharge are so distant in time he cannot account for exactly what happened.  There were allegations in his military service record that he drove recklessly.  However, as he recalls that evening, he was struggling to keep up with the vehicle in front of him on a very windy night.  He had an accident through no fault or intention of his own.

	b.  He has no specific recollection of the absent without leave (AWOL) charge other than being a little late returning back to base.  He does not recall getting in trouble for it and he does not recall that it was mentioned in the context of his discharge at the time.

	c.  His understanding of his discharge was that his company commander and he had discussed his inability to keep up with the physical duties due to his knee injury.  He was on light duty and could not perform many of his job responsibilities.  His commander was discouraged with his services as a result and Captain M explained that he could be discharged under honorable conditions due to his medical condition.  It came as quite a surprise that he received an under other than honorable conditions discharge because his company commander had advised him that he would get a medical discharge.
He believes that the discharge is out of proportion to his service which was honorable other than the two incidents.

3.  The applicant provides:

* self-authored statement
* Standard Form (SF) 600 (Health Record - Chronological Record of Medical Care) 
* SF 513 (Medical Record - Consultation Sheet)
* five DA Forms 3349 (Physical Profile)
* DD Form 214 (Report of Separation from Active Duty) for the period ending 14 June 1977

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.  On 23 March 1965, he was inducted into the Army of the United States.  He was awarded military occupational specialty 72B (Communications Center Specialist) and was advanced to the rank of specialist four/E-4.

3.  On 22 March 1967, he was honorably released from active duty.

4.  On 21 February 1975, he enlisted in the Regular Army.

5.  On 22 February 1977, he accepted nonjudicial punishment (NJP) for being absent from his unit.

6.  On 9 May 1977, court-martial charges were preferred against him for operating a 2 1/2-ton truck while drunk in a reckless manner by running off the road and thereby causing the vehicle to injure three Soldiers.

7.  On 16 May 1977, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged he had not been subjected to coercion with respect to his request for discharge and he had been advised of the implications that were attached to his request.  He further acknowledged that he was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.

	a.  He further acknowledged he understood that if his discharge request were accepted, he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He acknowledged that he understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

	b.  He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with counsel and was advised of the basis for his contemplated trial by court-martial under circumstances which could lead to an under other than honorable conditions discharge, of the effects of his request for discharge, and the rights available to him.  He waived his rights in conjunction with this consultation.

	c.  He submitted a statement on his own behalf.  He stated he had enlisted for 4 years and reenlisted with a reenlistment bonus.  He had received nonjudicial punishment once for AWOL/misconduct.  He was pending charges for Article 111, Uniform Code of Military Justice, reckless driving.  He stated he must get out of the Army as he had hardship discharge requests denied three times.  If he had to go back to duty he would do something crazy like go AWOL or hurt somebody, as he couldn't work in the Army with the problems he was having.  He acknowledged that he fully understood that by being discharged with anything other than honorable he would lose all benefits to include education and training, loans, and unemployment compensation.  He stated that he would accept a discharge under anything other than honorable conditions to get out. 

8.  On 26 May 1977, the applicant's commander recommended his discharge.  His commander stated the applicant was pending a special court-martial for operating a military vehicle while under the influence of alcohol causing an accident and injuring fellow Soldiers.  He further stated the applicant's performance of duty had been erratic and substandard.  He had attempted to avoid reassignment to Korea by submitting requests for hardship discharges.  All requests had been disapproved by the Department of the Army for insufficient justification.  Regarding his statements concerning future AWOL or other misconduct it was unlikely that further rehabilitation would produce positive results. 

9.  On 6 June 1977, the separation authority approved the applicant’s request for discharge and directed he be given an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 14 June 1977, the applicant was discharged for the good of the service under the provisions of chapter 10, Army Regulation 635-200, with his service characterized as under other than honorable conditions.  He completed a total of 4 years, 3 months, and 24 days of net active service with 12 days of time lost.

11.  He provides medical records related to torn cartilage in his left knee and a torn meniscus in his right knee.

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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 Soldier who committed an offense or offenses, the punishment for which included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  By submitting such a request for discharge, a Soldier would acknowledge guilt of the charge(s) against him or her or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  The Soldier's written request would include an acknowledgement that the Soldier understood if his or her request for discharge were accepted, the Soldier could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate.  They would also acknowledge that they had been advised and understood the possible effects of a discharge under other than honorable conditions; and that, as a result of the issuance of such a discharge, would be deprived of many or all Army benefits; that they may be ineligible for many or all benefits administered by the Veterans Administration; and that they may be deprived of their rights and benefits as a veteran under both Federal and State laws.  They would further acknowledge that they understood they may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

	b.  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 contentions were carefully considered.  However, there is insufficient evidence to support these contentions.

2.  He received NJP for being absent from his unit.  Court-martial charges were preferred against him for operating a military vehicle while drunk in a reckless manner by running off the road and thereby causing the vehicle to injure three Soldiers.  Therefore, his service was unsatisfactory.

3.  He admitted guilt to the charges preferred against him and 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.  At the time, an under other than honorable conditions discharge was normally considered appropriate for Soldiers separated for the good of the service.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  His serious misconduct warranted his discharge under other than honorable conditions.  Both his characterization of service and the reason for his discharge were appropriate considering the facts of the case.

5.  In view of the foregoing, there is no basis for upgrading his discharge 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)                                         AR20120022879



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ABCMR Record of Proceedings (cont)                                         AR20120022879



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