IN THE CASE OF:	  

		BOARD DATE:	  17 March 2015

		DOCKET NUMBER:  AR20140013017 


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 he had been approved for a medical discharge under honorable conditions before he was given his undesirable discharge.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and 2 letters from the Army Review Boards Agency, dated 16 January 2014 and 18 April 2014.

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 1 October 1969 and held military occupational specialty 71B (Clerk Typist).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.

3.  On 5 May 1970, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from on or about 21 April 1970 to on or about 
30 April 1970.

4.  On 20 August 1970, he accepted NJP under the provisions of Article 15 of the UCMJ for the unauthorized selling of military property.  

5.  Special Court-Martial Order Number 90, issued by Headquarters, 1st Basic Combat Training Brigade, Fort Jackson, South Carolina on 20 October 1970, shows he was convicted of being AWOL from on or about 7 September 1970 to on or about 15 September 1970.

6.  On 14 December 1970, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty.

7.  On 26 January 1971, court-martial charges were preferred against him for driving a car inside Fort Jackson, South Carolina in a drunk and reckless manner, thereby striking a 2.5 ton Army truck in the rear; leaving the scene of an accident; and operating a motor vehicle without a valid driver's license.  

8.  On 15 March 1971, after consulting with counsel, 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.  He acknowledged he understood he could request discharge for the good of the service because court-martial charges had been preferred against him under the UCMJ that authorized the imposition of a bad-conduct or dishonorable discharge.  He stated he was making this request for his own free will and had not been subjected to any coercion whatsoever by any person.  He also stated he had been advised of the implications attached to his request for discharge and understood that the charges against him authorized the imposition of a bad conduct or dishonorable discharge.

	a.  He acknowledged that prior to completing his request for discharge had consulted with counsel who fully advised him of the nature of his rights under the UCMJ and the elements of the offenses with which he was charged.

	b.  He acknowledged he understood that, if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate.  

	c.  He further acknowledged he had been advised and understood the possible effects of an undesirable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He further acknowledged he understood he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

9.  His record contains a Standard Form (SF) 89 (Report of Medical History) and an SF 88 (Report of Medical Examination), both dated 23 March 1971, which document the results of his separation physical.  The applicant described his current health as "Good" on the SF 89 and his physician also noted his health was "Good" and stated he was fully qualified for discharge.

10.  His records do not contain evidence that shows he had been approved for a medical discharge.

11.  On 9 April 1971, 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.  

12.  On 20 April 1971, he was discharged accordingly.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and he received an under other than honorable conditions discharge.  He completed 1 year, 5 months, and 7 days of creditable active military service with 43 days of time lost.

13.  On 16 October 1980, the Army Discharge Review Board (ADRB), after careful consideration of his military records and all other available evidence, determined he was properly discharged and denied his request for an upgrade.

14.  ABCMR Docket Number AC93-07831, dated 26 May 1993, shows he requested an upgrade of his undesirable discharge.  His request was denied because his request was not submitted within the required timeline.  The Board also stated that he had not presented and his record did not contain sufficient justification to conclude it would be in the best interest of justice to grant the requested relief or excuse the failure to file within the time frame prescribed by law.  
15.  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, a discharge under other than honorable conditions is normally considered appropriate.  

	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.  There is no evidence and the applicant did not provided evidence that shows he had ever been pending or approved for a medical discharge.  

2.  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, he 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.

3.  His record contains a history of NJP for the unauthorized sale of government property, failure to report, and AWOL; one court-martial conviction; and court-martial charges of drunk and reckless driving on a military installation, hitting the back of a military vehicle, and leaving the scene of an accident.  

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  In view of the foregoing, there is an insufficient evidentiary basis for granting an honorable or a general discharge in this case.

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)                                         AR20140013017



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ABCMR Record of Proceedings (cont)                                         AR20140013017



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