IN THE CASE OF:	  

		BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090014728 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states, in effect, that he was young and foolish at that time.  He states he has since raised 3 children.  He further states he has worked for
18 years at one place and he had two auto repair shops.

3.  The applicant did not provide any additional documentation in support of his request.

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 record shows he enlisted in the Regular Army (RA) on
8 December 1972.  He completed the required training and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank/grade he attained during his tenure of service was private (PV2)/
E-2.  At the time of his enlistment he was 18 years, 10 months, and 2 days of age.

3.  On 28 January 1974 a DA Form 458 (Charge Sheet) was prepared on the applicant showing that he was being charged with four violations under the Uniform Code of Military Justice (UCMJ), as follows:

	a.  Charge I:  Violation of the UCMJ, Article 92.  In that [applicant's name and unit] did, on or about 2100 hours, 15 January 1974, violate a lawful Army Regulation, to wit:  Paragraph 4-2 (A) (7) (A) 1, Army Regulation 600-50, dated 20 September 1972, by wrongfully having in his possession a trace, more or less, of marijuana.

	b.  Charge II:  Violation of the UCMJ, Article 113.  In that [applicant's name and unit], did, on or about 0600 hours, 16 January 1974, being posted as a barracks guard was found sleeping upon his post.

	c.  Charge III:  Violation of the UCMJ, Article 86.  In that [applicant's name and unit]  did, on or about 0730 hours, 17 January 1974, without authority, failed to go at the time prescribed to his appointed place of duty, to wit:  work formation.

	d.  Charge IV:  Violation of the UCMJ, Article 91.  In that [applicant's name and unit] did, on or about 0900 hours, 23 January 1974, having received a lawful order from his superior noncommissioned officer to remove his knit cap, did willingly disobey the same.

4.  On 24 January 1974 the acting commander requested that the applicant be given a special court-martial and that he be discharged from active duty.

5.  On 28 January 1974, the applicant consulted with counsel and voluntarily requested discharge for the good of the service under Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (for the good of the service - in lieu of court-martial).  He requested this discharge based on the charges preferred against him under the UCMJ.  He acknowledged that he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.   The applicant stated that he understood that, as a result of the issuance of such a discharge, he may be deprived of many or all Army benefits, that he may be ineligible for any or all benefits administered by 

the Veterans Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State law and that he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

6.  The applicant provided a statement in his own behalf.  He stated, in effect, that he wanted out of the Army because he was not able to adapt to the military way of life.  He didn't see why he should do what some NCOs [noncommissioned officers] that hadn't even got a high school diploma told him to do.  He further stated that he cannot give respect to a person that doesn't even try to earn it.  Based on the reasons stated he asked that his chapter 10 be approved 

7.  On 29 January 1974 a DA Form 3822-R (Report of Mental Status Evaluation) was completed by a proper medical official prior to the applicant's separation.  In the evaluation his behavior and thought content was normal, he was fully alert, his orientation and mood was level, his memory was good, he was mentally responsible, he was able to distinguish right from wrong and adhere to the right, is had the mental capacity to understand and participate in board proceedings, and he met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).

8.  The applicant’s DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 6 March 1974 under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.  At the time of his discharge, the applicant had 1 year, 2 months, and 23 days of active duty service and
6 days of lost time.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service. 

10.  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.

11.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant had four violations under the UCMJ:  having a trace, more or less of marijuana, in his possession; being asleep on his post; not being at his appointed place of duty, and willfully disobeying his superior noncommissioned officer.

2.  The applicant voluntarily requested separation for the good of the service in lieu of trial by court-martial.

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.

4.  Evidence of record shows that the applicant was 20 years of age at the time of his numerous acts of indiscipline and offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

5.  Based on the foregoing, there is no basis for granting the applicant's 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)                                         AR20090014728



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ABCMR Record of Proceedings (cont)                                         AR20090014728



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