BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100013260 


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.

2.  The applicant states:

* He enlisted in January 1969 at the age of 17
* After a couple of years he and some noncommissioned officers did not get along very well
* He felt he was being harassed so he spoke with a Judge Advocate General (JAG) officer and he handled the discharge procedure
* He was young and really did not understand what was going on
* All he knew is that he wanted to get those people off his back
* In January 1972 he was discharged with an undesirable discharge
* He served his entire term of 3 years and still got an undesirable discharge

3.  The applicant provides no documentary evidence 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.  The applicant was born on 9 December 1951.  He enlisted in the Regular Army on 20 January 1969 for a period of 3 years.  He successfully completed his training and he was awarded military occupational specialty (MOS) 94B (cook).

3.  On 18 February 1971, nonjudicial punishment (NJP) was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty and for disobeying a lawful order.

4.  On 1 March 1971, NJP was imposed against the applicant for disobeying a lawful order and failing to obey a lawful general regulation.  His punishment consisted of a reduction to E-3.

5.  On 5 April 1971, NJP was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment included a reduction to E-2.

6.  On 13 May 1971, NJP was imposed against the applicant for failing to obey a lawful general regulation.

7.  On 14 June 1971, a bar to reenlistment was imposed against the applicant.

8.  On 13 August 1971, charges were preferred against the applicant for failing to go at the time prescribed to his appointed place of duty (six specifications) and for disobeying a lawful command.  Trial by special court-martial was recommended.  On 14 September 1971, additional charges were preferred against the applicant for communicating two threats to injure a first lieutenant, communicating a threat to blow up a building (Army Depot in Germany), and disobeying a lawful command.

9.  On 22 September 1971, after consulting with counsel, the applicant submitted a request for discharge 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.  He indicated in his request he understood that he could be discharged under other than honorable conditions 


and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

10.  On 13 December 1971, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

11.  Accordingly, the applicant was separated with an undesirable discharge on 
8 January 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He served a total of 
2 years, 11 months, and 19 days of total active service.

12.  On 7 May 1984, the Army Discharge Review Board denied the applicant's request for an upgrade of his undesirable discharge to an honorable discharge.

13.  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 Veterans Administration 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.

14.  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.  Age is not a sufficiently mitigating factor.  Although the applicant was 17 years old when he enlisted, he successfully completed his training and he was awarded MOS 94B.  In addition, he served over 2 years of service prior to his first NJP.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  The applicant's record of service included four NJPs, a bar to reenlistment, and numerous offenses for which trial by special court-martial was recommended.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

5.  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

___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)                                         AR20100013260



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ABCMR Record of Proceedings (cont)                                         AR20100013260



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