IN THE CASE OF:	  

		BOARD DATE:	  3 September 2013

		DOCKET NUMBER:  AR20130001540 


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 characterization of service be upgraded to under honorable conditions (general). 

2.  The applicant states that at the time of his discharge he was told he would receive an under honorable conditions characterization of service.

3.  The applicant 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 enlisted in the Regular Army on 31 July 1973.  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.  He remained in a trainee status during his entire period of military service.

3.  His record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 30 January 1974 for being absent without leave (AWOL) from 8 to 14 January 1974.

4.  The applicant's record contains a Standard Form (SF) 93 (Report of Medical History), an SF 88 (Report of Medical Examination), and a DA Form 3822-R (Report of Mental Status Evaluation), dated 23 August 1974 which show he met medical retention standards, he had no mental or psychological disorders, and he had the mental capacity to understand and participate in board proceedings.

5.  The applicant's record contains two statements, dated 9 September 1974.  These statements indicate that on 7 September 1974 a wall locker in the applicant's company had been broken into.  The applicant and another Soldier were suspected of having been involved in the incident.  The next day, the applicant and two of his associates threatened to kill two other Soldiers if they got into trouble over the wall locker incident.

6.  The applicant's record also contains a court-martial charge sheet, dated 
9 September 1974, which shows he was charged with two specifications of wrongfully communicating a threat to kill two other Soldiers if he got into trouble over the wall locker incident.

7.  On 23 September 1974, he 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 the procedures and rights that were available to him.  Subsequent to receiving this legal counsel and without coercion, he voluntarily requested 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.  

8.  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct or a dishonorable discharge.  He further acknowledged he understood that if his discharge request was 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.

9.  His record contains a memorandum issued by his company commander on 
26 September 1974 which recommended approval of the applicant's request for discharge and stated he felt the applicant’s acceptance of the chapter 10 discharge indicated guilt and warranted expeditious elimination for the benefit of the unit and the service.  The applicant had been pending a chapter 13 separation for unsuitability prior to the charges of communicating a threat.  He required constant supervision and went AWOL from 2 to 14 August 1974 while awaiting administrative processing of his chapter 13 separation.  Additionally, his commander recommended that he receive an undesirable discharge.

10.  On 10 October 1974, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an undesirable discharge, and reduction to private/E-1.  Accordingly, he was discharged on 
23 October 1974.

11.  His DD Form 214 shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 for the good of the service with an undesirable discharge.  His DD Form 214 shows in addition to the lost time listed above he was AWOL from 21 June to 1 July 1974 and from 9 September to 23 October 1974.  Therefore, he completed 1 year and 9 days of creditable active military service and he had 74 days of lost time.

12.  There is no indication that the applicant applied to the Army Discharge Review Board within that board’s 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu 
of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge was normally considered appropriate at the time. 

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that having been advised by legal counsel the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  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.

2.  His record contains NJP, 74 days of lost time, and two court-martial charges for communicating a threat to kill two fellow Soldiers which tarnished his overall record of service.  As such, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  As such, he is not entitled to an honorable or 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)                                         AR20130001540



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ABCMR Record of Proceedings (cont)                                         AR20130001540



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