IN THE CASE OF:  	  

		BOARD DATE:  30 April 2015	  

		DOCKET NUMBER:  AR20140015231 


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 his 1976 discharge be voided or, in the alternative, an upgrade of his under other than honorable conditions discharge for the good of the service in lieu of trial by court-martial to an honorable discharge.

2.  The applicant states he was charged with offenses that he did not commit.  He states there was misrepresentation of the facts and an injustice in the separation process.  He does not have a criminal record, he has been disabled since 1992, and he sometimes attends church.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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.  A DD Form 214 shows the applicant enlisted in the Regular Army (RA) on 18 September 1972 and was honorably discharged on 18 December 1974 to reenlist.  It also shows he –

* was awarded military occupational specialty 11B (Light Weapons Infantryman)
* attained the rank of specialist four/pay grade E-4
* completed 2 years, 2 months, and 24 days of net active service

3.  The applicant reenlisted in the RA on 19 December 1974 for a period of 
3 years.

4.  On three separate occasions, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being –

* absent from his place of duty on 17 July and 18 July 1975
* absent without leave (AWOL) from 11 August to 21 August 1975
* absent from his place of duty on 12 May 1976

5.  Headquarters, 11th Armored Cavalry Regiment, Special Court-Martial Order Number 3, dated 10 February 1976, shows the applicant was tried at a special court-martial.

	a.  He pled guilty to and was found guilty of the charge and specification of being absent from his unit from 3 September 1975 to 16 November 1975.
 
	b.  On 19 January 1976, he was sentenced to confinement at hard labor for 6 months, forfeiture of $240.00 pay per month for 6 months, and reduction to private (PV1)/pay grade E-1.

	c.  On 10 February 1976, the convening authority approved the sentence and ordered it duly executed, but the execution of that portion adjudging confinement in excess of 45 days and forfeiture of $240.00 pay per month for 6 months was suspended for 6 months, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence was to be remitted without further action.

6.  On 20 July 1976, court-martial charges were preferred against the applicant for violation of the UCMJ –

* Article 121, for, on 24 June 1976, stealing the personal property of another Soldier, of a total value of about $260.70
* Article 109, for, on 24 June 1976, willfully and wrongfully damaging the personal property of another Soldier, of a value of about $13.00

7.  On 23 August 1976, the applicant consulted with legal counsel.  He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial.  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  By submitting his request for discharge he acknowledged that he was guilty of the charges against him or of lesser included offenses therein contained, which also authorized the imposition of a punitive discharge.

	b.  He was advised that he might be –

* deprived of many or all Army benefits
* ineligible for many or all benefits administered by the Veterans Administration
* deprived of his rights and benefits as a veteran under both Federal and State laws

   c.  He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.

	d.  He was also advised that he could submit statements in his own behalf and he elected not to submit any statements.

   e.  The applicant and his counsel placed their signatures on the document.

8.  On 26 August 1976, the applicant received a mental status evaluation from a medical officer who found the applicant's behavior was normal to include being fully alert and oriented.  The applicant's mood was level and his thinking process was clear with normal thought content and good memory.  He had no mental illness and was mentally responsible to include being able to distinguish right from wrong and able to adhere to the right.  The medical officer stated the applicant had the capacity to understand and participate in his separation proceedings and met the Army retention standards.  

9.  His immediate and intermediate commanders recommended approval of the applicant's request for discharge with the issuance of an undesirable discharge.

10.  On 10 September 1976, the separation authority approved the applicant's request for discharge and directed that he be issued an Undesirable Discharge Certificate.

11.  On 15 November 1976, the applicant was discharged accordingly.  His DD Form 214 shows he was discharged 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 with an under other than honorable conditions characterization of service.  He had completed 1 year, 5 months, and 16 days of net active service during this period and he had 161 days of time lost.

12.  The applicant submitted an application to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 27 March 1984, the applicant was notified that the ADRB had determined that the reason for his discharge and the character of his service were both proper and equitable.  Accordingly, the ADRB denied the relief requested by the applicant.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 characterization of under other than honorable conditions is normally considered appropriate.

   b.  Chapter 3, 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. 	Chapter 3, 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 contends that his discharge should be voided or, in the alternative, upgraded because he was innocent of the charges preferred against him.  He contents there was misrepresentation of the facts and an injustice in the separation process.

2.  The evidence of record shows that the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  

   a.  In addition, by submitting his request for discharge the applicant acknowledged in writing that he was guilty of the charges against him (emphasis added) or of lesser included offenses therein contained.  Thus, the evidence of record refutes the applicant's contention that he was innocent of the charges against him and that there was misrepresentation of the facts and an injustice in the separation process.  As such, there is no basis for voiding his administrative discharge.

   b.  Therefore, considering all the facts of the case, it is concluded the reason for discharge and characterization of service were both proper and equitable.

3.  The evidence of record shows the applicant reenlisted in the RA on 19 December 1974.  Subsequent to reenlisting he accepted NJP on three separate occasions, he was convicted at a special court-martial for being AWOL from 3 September to 16 November 1975, and he had 161 days of time lost.  In addition, he was charged with offenses punishable by a bad conduct or dishonorable discharge and he failed to complete his 3-year reenlistment obligation.  Thus, the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or a general discharge.

4.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting 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)                                         AR20140015231



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ABCMR Record of Proceedings (cont)                                         AR20140015231



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