IN THE CASE OF:	  

		BOARD DATE:	  20 August 2014

		DOCKET NUMBER:  AR20130021762 


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 (UD) to an honorable discharge.

2.  The applicant states he was not given a reason for his discharge except that it was for the good of the service.  He believes his discharge should be upgraded to honorable.

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army on 13 December 1973 and he served as an infantryman.  
3.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on/for:

* 13 February 1974 – absenting himself from his unit from 11 to 12 February 1974
* 22 May 1974 – failing to display proper military courtesy during Retreat and failing to go to his appointed place of duty
* 4 June 1974 – failing to go to his appointed place of duty

4.  He served in Germany from 6 July 1974 through 2 December 1976.

5.  He was advanced to pay grade E-3 on 25 September 1974.

6.  On 30 December 1974, he was convicted by a special court-martial of one specification each of failing to obey a lawful command from his superior officer and being drunk and disorderly in a public place.  He was sentenced to a forfeiture of pay for 3 months.  His sentence was approved on 3 January 1975.

7.  On 16 January 1975, he again accepted NJP under Article 15, UCMJ, for willfully disobeying a lawful order from his superior noncommissioned officer (NCO).

8.  On 22 January 1975, a DD Form 458 (Charge Sheet) was completed by the Commander, Company B, 1st Battalion, 30th Infantry.  The applicant was charged with three specifications of willfully disobeying a lawful order from his superior NCO on 16 January 1975.

9.  On 4 February 1975, 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 trial by court-martial for charges being preferred against him.  He acknowledged he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate and the result of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.    

10.  On 4 February 1975, the applicant's chain of command recommended approval of the applicant's request and recommended the issuance of a UD.  

11.  On 11 February 1975, the Staff judge Advocate found no legal objection to approving the applicant's discharge. 

12.  On 11 February 1975, the separation authority approved the applicant’s request and directed the issuance of a UD and reduction to pay grade E-1.

13.  He was discharged in pay grade E-1 accordingly on 24 February 1975.  He was credited with completing 1 year, 2 months, and 12 days of net active service. He was issued an Undesirable Discharge Certificate.

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

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulations 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.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

   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.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  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 was charged with the commission of an offense punishable under the UCMJ 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 acknowledged the reason for his discharge and that he understood he could be furnished an Undesirable Discharge Certificate.  He waived his rights and elected not to submit a statement in his own behalf.    

2.  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 general or fully honorable discharge.

3.  Without evidence to the contrary, it appears his administrative discharge was accomplished in compliance with applicable regulations in effect at the time and the current version, 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 an upgrade of his 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)                                         AR20130021762



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ABCMR Record of Proceedings (cont)                                         AR20130021762



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