IN THE CASE OF:	   

		BOARD DATE:	  8 September 2015

		DOCKET NUMBER:  AR20150000643 


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 under other than honorable conditions discharge. 

2.  The applicant states, in effect:

* it took him a long time to submit this application because of procrastination and his battle with alcohol and drugs
* he is not saying that his problems after discharge are totally the fault of the military
* it took him years to realize that he was attempting to escape through the use of drugs and alcohol and the decisions that he made were wrong
* he was drafted under old Army rules and experienced the new Army rules 
* he regrets that due to his circumstances he did not become a career Soldier
* he did his best and if he could do it again he would be proud 

3.  The applicant provides a:

* Statement from his case manager
* Statement from a director of a recovery program
* Statement from an individual who knows him 




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 was inducted into the Army of the United States on 14 September 1970 and he held military occupational specialty 11C (Indirect Fire Crewmember). 

3.  He served in Korea from on or about 27 February 1971 to 13 March 1972.  He was assigned to the 1st Battalion, 9th Infantry Regiment, and then to the 1st Battalion, 23rd Infantry Regiment, both of the 2nd Infantry Division. 

4.  He was awarded or authorized the National Defense Service Medal, Armed Forces Expeditionary Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

5.  On 25 June 1971, while with the 1st Battalion, 9th Infantry Regiment, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 23 to 24 June 1971. 

6.  On 18 August 1971, while with the 1st Battalion, 23rd Infantry Regiment, he was convicted by a summary court-martial of one specification of failing to go at the time prescribed to his appointed place of duty and one specification of stealing property from the Yongson Main Exchange.  The court sentenced him to a reduction to E-2, a forfeiture of pay, and extra duty and restriction.  The convening authority approved the sentence on 19 August 1971. 

7.  On 30 October 1971, also while with the 1st Battalion, 23rd Infantry Regiment, he was convicted by a summary court-martial of one specification of stealing cigarettes, one specification of assaulting another Soldier, and two specifications of disobeying a lawful order from a commissioned officer.  The court sentenced him to a reduction to E-1, a forfeiture of pay (suspended), and confinement at hard labor for 30 days (suspended).  The convening authority approved the sentence on 11 November 1971. 

8.  On 11 February 1972, court-martial charges were preferred against the applicant for one specification of stealing from another by means of force and violence a wallet and one specification of conspiring with another Soldier to commit theft against a Soldier by means of force and violence. 

9.  Subsequent to referral of court-martial charges, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for the good of the service in lieu of trial by court-martial.  In his request for discharge, he stated/acknowledged that:

* prior to completing this request, he was afforded the opportunity to consult with counsel and he did so
* he was making the request of his own free will and he had not been subjected to any coercion
* he acknowledged he understood that if his request was approved he could be furnished an Undesirable Discharge Certificate
* he acknowledged that he understood if such a discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement in his own behalf

10.  On 15 February January 1972, his immediate, intermediate, and senior commanders recommended approval of the discharge action with the issuance of an Undesirable Discharge Certificate. 

11.  On 6 March 1972, following a legal review for legal sufficiency and consistent with the chain of command's recommendations, the separation authority approved the applicant's voluntary request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 13 March 1972. 
12.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with an undesirable discharge.  He completed 
1 year, 5 months, and 29 days of active service during this period and he had
1 day of lost time.  

13.  On 21 February 1980, the Army Discharge Review Board denied his petition for an upgrade of his discharge after it found his discharge proper and equitable. 

14.  He provides: 

	a.  A statement from his case manager who states the applicant has been meeting or exceeding expectations of a program he is enrolled in.  The author also states the applicant has used his faith to improve his life and reach out to others to help them.  

	b.  A statement from the director of a recovery program who states despite the applicant’s dysfunctional background, he remains an active parent and grandparent.  He suffered from alcohol and drug addiction as he was growing up, and despite this he helped take care of the elderly and other adults.  He is clean and sober and wants to continue to improve his life. 

	c.  A statement from an individual who has known the applicant for 50 years.  She states the applicant has made changes in his life over the years.  He is more cognizant of his responsibilities and obligations, attends church, and helps others. 

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  Although an honorable or general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate.

	a.  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.

	b.  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 was charged with the commission of an offense 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.   The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  

2.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, which also included an Article 15 and two court-martial convictions, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he should not receive an upgrade of his discharge to either honorable or general.

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)                                         AR20150000643



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ABCMR Record of Proceedings (cont)                                         AR20150000643



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