IN THE CASE OF: BOARD DATE: 19 October 2011 DOCKET NUMBER: AR20110008640 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, in effect, that his undesirable (under other than honorable conditions) discharge be upgraded. 2. The applicant states: * he was discharged because the Army said he was undesirable; however, he believes it was for his mental state * he does not have anyone to help him and he needs help * he has not had a job since his discharge 3. The applicant provides a copy of his Undesirable Discharge Certificate. 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 16 May 1973. He completed training and was awarded military occupational specialty 76Y (Armorer/Unit Supply Specialist). The highest rank/grade he attained while on active duty was private/E-2. 3. Records show the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 17 April 1974, for failure to go to his place of duty and using disrespectful language toward a superior noncommissioned officer. 4. On 2 May 1974, charges were preferred against the applicant for failure to go to his place of duty, disrespectful behavior toward commissioned officers, and wrongfully communicating a threat to injure commissioned officers. 5. On 14 June 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights that were available to him. Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 6. In his request for discharge, the applicant indicated he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 7. On 22 July 1974, the separation authority approved the applicant's request for discharge and directed that he receive an Undesirable Discharge Certificate. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 26 July 1974 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial, with a character of service of under other than honorable conditions. 8. A DA Form 3822-R (Report of Mental Status Evaluation) does not show the applicant suffered from a mental illness. 9. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 10. Army Regulation 635-200 (Personnel Separations) 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. 11. Army Regulation 635-200, 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. 12. Army Regulation 635-200, 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's request that his under other than honorable conditions discharge be upgraded was carefully considered; however, it was determined there is insufficient evidence to support his request. 2. Although the applicant believes he was discharged due his mental state, his records are void of any diagnosis of mental illnesses. 3. The applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial. Discharges under the provisions of chapter 10, Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. The applicant voluntarily requested discharge from the Army 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. 4. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, the applicant is not entitled to either a general or honorable 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) AR20110008325 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110008640 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1