IN THE CASE OF:	  

	BOARD DATE:	  17 JULY 2008

	DOCKET NUMBER:  AR20080006259 


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 discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that he and another Soldier hit the helicopters with a tank because they thought the helicopters were junk.  He states that they had no engines, seats, dashes or blades as they had been completely gutted.  He states that he was young; that he did not realize the mistake that he was making; and that he had to repair what little damage that was made so that the helicopters could later be used.  He states that he does not believe that he fully understood all the consequences of requesting a discharge under the provisions of chapter 10, Army Regulation 635-200; however he believes that he did receive appropriate counsel.  The applicant concludes by requesting that the length of time that he had remaining in the service; the fact that he volunteered to enlist at age 17 while many others were dodging the draft; the time that has passed since his offenses; and the fact that he has furthered his education, be taken into consideration during the review of his case.

3.  The applicant provides no additional documentation in support of his application.

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.  On 30 September 1971, the applicant enlisted in the Army in Jacksonville, Florida, at age 17, with parental consent, in the pay grade of E-1.  He successfully completed his training as an armor crewman.

3.  He was promoted to the pay grade of E-2 on 3 December 1971 and he was advanced to pay grade E-3 on 10 March 1972.

4.  Nonjudicial punishment (NJP) was imposed against the applicant on 13 February 1973 for being disrespectful in language towards his superior noncommissioned officer.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay in the amount of $71.00 and restriction for 14 days.

5.  After being advanced to the pay grade of E-3 on 6 September 1973, NJP was imposed against the applicant on 24 September 1973, for being absent from his place of duty.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay in the amount of $85.00 per month for 2 months, restriction for 14 days and extra duty for 14 days.

6.  On 3 October 1973, NJP was imposed against the applicant for two incidents of failure to go to his appointed place of duty and for breaking restriction.  His punishment consisted of correctional custody for 30 days and a forfeiture of pay in the amount of $170.00 per month for 2 months.

7.  In a letter dated 25 October 1973, the applicant's commanding general was notified by his wife's attorney that she was seeking dissolution of her marriage, and that the applicant had failed to make any type of allotment for the support of his wife and child.  

8.  Charges were preferred against the applicant on 21 November 1973, for willfully running over three helicopter simulators valued at about $18,000, military property; and for breaching the restraints of correctional custody.  

9.  The applicant was notified that charges were pending against him on 26 November 1973.  He acknowledged receipt of the notification on 6 December 1973 and, after consulting with counsel, he submitted a request for discharge under the provision of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.

10.  The appropriate authority approved the request for discharge on 18 January 1974 and directed the issuance of an Undesirable Discharge Certificate.

11.  Accordingly, on 13 February 1974, 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.  He had completed 2 years, 4 months and 14 days of total active service and he was furnished an Undesirable Discharge Certificate.

12.  On 21 May 1976 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

13.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's contentions regarding his age at the time of his enlistment, his length of service and his post service conduct has been considered.  However, the applicant met entrance qualification standards with an age waiver.  Furthermore, there is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation.  

4.  None of the applicant’s contentions, either individually or in sum, warrant the relief requested.  The applicant had NJP imposed against him on three separate occasions and charges were pending against him as a result of his numerous 
acts of indiscipline.  Considering the nature of his offenses, it does not appear that his undesirable discharge is too harsh and the character of the discharge is commensurate with the applicant's overall record of military service.

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080006259



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ABCMR Record of Proceedings (cont)                                         AR20080006259



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