IN THE CASE OF:	  

		BOARD DATE:  6 February 2014

		DOCKET NUMBER:  AR20130009036 


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 undesirable discharge to general under honorable conditions.

2.  The applicant states the current character of service impacts gainful employment and Department of Veterans Affairs (VA) benefits.  He believes he has become a contributing member of society and worthy of consideration.

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's records show he enlisted in the Regular Army on 17 May 1971 and he held military occupational specialty 63C (Track Vehicle Mechanic).  He served in Korea from on or about 29 November 1971 to on or about 12 December 1972.

3.  He was honorably discharged on 26 April 1973 for the purpose of immediate reenlistment.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period shows he completed 1 year, 11 months, and 10 days of active service.

4.  He reenlisted on 27 April 1973.  He continued his service in Korea and he also served in Germany from on or about 27 February 1974 to sometime in November 1974.

5.  His records show he was advanced to the rank/grade of specialist four/E-4 effective 1 June 1973 and he was awarded or authorized the National Defense Service Medal and the Armed Forces Expeditionary Medal.

6.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 19 May 1972 for operating a military vehicle while drunk and causing military property to be stolen from a military vehicle
* 6 December 1973 for being disrespectful in language toward a superior noncommissioned officer

7.  On 5 November 1974, his command preferred court-martial charges against him for one specification of possessing a controlled substance and one specification of wrongfully possessing a pipe containing the residue of marijuana.

8.  On 11 November 1974, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him. 
Following consultation with legal counsel, 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 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge he indicated:

	a.  He was making the request of his own free will and he had not been subjected to any coercion by anyone.

	b.  He acknowledged he understood that if his discharge request were approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.

	c.  He understood that if such discharge were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

	d.  He elected not to submit a statement on his own behalf.

9.  The applicant's immediate, intermediate, and senior commanders recommended approval of his request for discharge with the issuance of an Undesirable Discharge Certificate.

10.  On 14 November 1974 subsequent to a legal review for legal sufficiency and consistent with the chain of command recommendations, the separation authority approved the applicant's request for voluntary discharge for the good of the service in lieu of trial by court-martial in accordance with Army Regulation 
635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate and his reduction to the lowest enlisted grade.  The applicant was accordingly discharged on 25 November 1974.

11.  His DD Form 214 (Report of Separation from Active Duty) for this period shows he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with the issuance of an Undesirable Discharge Certificate.  This form shows he completed 1 year, 6 months, and 29 days of active service during this period.

12.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge 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.

	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.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	b.  Paragraph 3-7b states 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 records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, 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.

2.  The applicant's overall service was tarnished by his wrongful possession of a controlled substance.  He also had two instances of NJP and he was faced with a trial by court-martial.  Upon preference of court-martial charges against him, he consulted with counsel.  His options were to face trial by court-martial that could have adjudged a dishonorable or a bad conduct discharge or submit a voluntary request for discharge.  He voluntarily chose discharge and indicated he was aware of the implications of such request, including the impact on VA benefits.

3.  Based on his record of indiscipline, the applicant's 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 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)                                         AR20130009036



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ABCMR Record of Proceedings (cont)                                         AR20130009036



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