IN THE CASE OF:	  

		BOARD DATE:	28 January 2014 

		DOCKET NUMBER:  AR20130021495 


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 general discharge to an honorable discharge.

2.  The applicant states the recruiter lied to him when he enlisted.  The recruiter did not tell him that he would be trained in military occupational specialty (MOS) 11B (light weapons infantryman).  He thought he was going to attend school to become a diesel mechanic.  However, he did not get to go to school to become a diesel mechanic.  He ended up in an infantry unit.  He was told he would have to reenlist to go to diesel mechanic school, which was wrong.  He believes his discharge should be upgraded to an honorable discharge due to a breach of his contract.  

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.  He enlisted in the Regular Army, in pay grade E-1, on 26 July 1976, for 3 years.  His record contains the following:

   a.  A DD Form 1966/1 (Application for Enlistment – Armed Forces of the United States), which shows in item VII (Enlistment Options), page 6, he specifically enlisted for the U.S. Army, Korea, 2nd Infantry Division, and MOS 11B; he signed this form on 26 July 1976 acknowledging his acceptance of this enlistment.

   b.  An Enlistment/Travel Order Number 155-1, issued by the Armed Forces Examining and Entrance Station, dated 26 July 1976, assigning him to active duty in the U.S. Army, Korea, 2nd Infantry Division, in MOS 11B.

3.  He completed training and was awarded MOS 11B.  He was advanced to pay grade E-2 on 24 March 1977.

4.  On 15 May 1977, he was reported absent without leave (AWOL) and on 13 June 1977, he was dropped from the rolls of his organization.  He surrendered to military authorities and was returned to military control on 11 July 1977.

5.  On 21 July 1977, a DD Form 458 (Charge Sheet) was completed by the Commander, U.S. Army Personnel Control Facility, U.S. Army Garrison.  The applicant was charged with one specification of being AWOL from 15 May to 11 July 1977.

6.  On 21 July 1977, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trail by court-martial.  He acknowledged he could be discharged under other than honorable conditions and the results of such a discharge.  He waived his rights and elected to submit a statement in his own behalf.    

7.  In his statement, the applicant stated:

   a.  The reason he went AWOL was because his mother, brother, and sisters lived in a house that was 150 years old and it was falling apart.  When he went home on leave from Korea he found that the house had no plumbing system and no well for them to pump water.  His father died last year and everything went down the drain.  His mother was receiving Social Security benefits and she did not have the money to pay a plumber, a carpenter, or someone to haul the garbage away.

   b.  He knew what could happen to him and he wanted to keep his clean record even if it meant a court-martial.  He would eventually get to go home and finish helping his family.  He sent money home to his mother, but he wasn't making enough to keep doing that with his own bills.  If his chapter 10 discharge was approved he would return to his old job as a diesel mechanic and would be able to help his mother at the same time.  That was why he wanted to get out of the Army.

8.  On 21 July 1977, the applicant’s company commander recommended approval of the applicant’s discharge for the good of the service with the issuance of an under other than honorable conditions discharge.  The company commander stated during the interview the applicant assured him that he desired to be discharged from the Army.

9.  On 22 July 1977, the applicant's battalion commander, recommended approval of the applicant's discharge and recommended the issuance of an under other than honorable conditions discharge.

10.  On 27 July 1977, the separation authority approved the applicant’s request under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of a General Discharge Certificate.  

11.  He was discharged accordingly in pay grade E-2 on 22 August 1977, with a general discharge.  He was credited with completion of 11 months and 1 day of net active service with 57 days of time lost.

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

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and his request for an upgrade of his general discharge were carefully considered and found not to have merit.

2.  The evidence of record shows at the time of his enlistment in July 1976 he knew and acknowledged his acceptance for specific enlistment in an infantry unit in MOS 11B.

3.  He was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  He stated that he wanted to be discharged to return to his old job as a diesel mechanic so he could help his family.  He was discharged accordingly on 22 August 1977.

4.  It appears that based on his overall record it was directed he receive a general discharge.  Normally such service as his would be characterized as under other than honorable conditions.

5.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable discharge.




6.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to 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)                                         AR20130021495



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ABCMR Record of Proceedings (cont)                                         AR20130021495



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