IN THE CASE OF:	  

		BOARD DATE:	  26 February 2014

		DOCKET NUMBER:  AR20130010624 


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.

2.  The applicant states the processing and information of the discharge was incorrect.  He feels that all the information was not received on his behalf.

3.  The applicant does not provide any 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 28 September 1970 and he held military occupational specialty 31M (Radio Relay and Carrier Operator). 

3.  He served in Germany from on or about 19 March 1971 to an unknown date.  He was awarded or authorized the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar. 

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

* 21 October 1971, being absent from his appointed place of duty on 20 October 1971
* 26 October 1971, being absent from his appointed place of duty on 22 October 1971
* 7 March 1972, striking another Soldier in the head, failing to go to his appointed place of duty, and being disrespectful in language

5.  On 8 March 1972, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against him citing his continued misconduct.  The immediate commander stated the applicant was an instigator of racial issues and he constantly shirked his duties.  He had to be supervised at all times and he schemed and lied to accomplish his end.  The applicant was presented with a copy of this bar but he did not make a statement on his own behalf.  The bar was ultimately approved by the approval authority. 

6.  On 25 May 1972, he was reprimanded by his commander for absenting himself from interior guard duty and thus failing to maintain good order and discipline. 

7.  On 3 July 1972, he accepted NJP under the provisions of Article 15 of the UCMJ for being absent without leave (AWOL) from 5 to 20 June 1972.

8.  On 15 August 1972, court-martial charges were preferred against him for one specification of assault, one specification of theft by means of force, one specification of operating a military vehicle in a reckless manner, and one specification of unlawfully leaving the scene of an accident.  

9.  The applicant's separation packet is not available for review with this case; however, his records contain:

	a.  Special Orders Number 270, issued by Headquarters, 3rd Infantry Division, on 26 September 1972, ordering his reduction to the lowest enlisted grade effective 15 September 1972 by reason of approved discharge from service with an Undesirable Discharge Certificate. 

	b.  A duly-constituted DD Form 214 that shows he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 2 October 1972, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, and issued a DD Form 258A (Undesirable Discharge Certificate).  He completed 2 years and 
5 days of active military service.

	c.  An Order of Ejection issued by the Commanding General, U.S. Army Training Center, Fort Dix, NJ, on 2 October 1972, that states since the applicant had been discharged from the Army on 2 October 1972 with an undesirable discharge, he was ordered not to reenter the confines of the Fort Dix Military Installation. 

10.  On 1 April 1977, the Army Discharge Review Board (ADRB) reviewed his discharge but determined it was proper and equitable.  Accordingly, the ADRB denied his petition for an upgrade of his discharge. 

11.  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 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.

	b.  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.

	c.  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 record is void of the complete facts and circumstances surrounding his discharge action.  However, the court-martial charge sheet in his record clearly shows he was charged with the commission of offense(s) 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.

2.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that 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.

3.  There is no evidence in his record and he provides none to corroborate his contention that the processing of his discharge was incorrect or that he was not given all the information. 

4.  His military service was marred with misconduct from beginning to end and included several Article 15s, a reprimand, at least one instance of AWOL, a bar to reenlistment, and court-martial charges that could have led to a dishonorable or bad conduct discharge.  

5.  Based on his extensive history 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, there is no basis for granting him the 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)                                         AR20130010624





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130010624



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1