IN THE CASE OF:	  

		BOARD DATE:	  27 January 2011

		DOCKET NUMBER:  AR20100018365 


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 undesirable discharge to a general discharge.

2.  The applicant states he was 17 years of age when he enlisted in the Army and he was not ready to handle what military service had to offer him.

	a.  He states he was involved in an altercation in the dining facility with another Soldier who physically assaulted him that resulted in a cut to his forehead.  He adds that there were no other physical injuries to anyone else and there was no property damage.

	b.  He states he was charged with aggravated assault and possession of a weapon because he had a knife in his pocket when he was questioned by the military police.  He states the information and allegations against him were misconstrued.  As a result, he spent 2 months in the stockade.

	c.  He offers his age at the time of the incident, the absence of parental guidance in his life, the absence of a juvenile record, no previous involvement with police, and his high school equivalency certificate as mitigating information in considering his request for upgrading his discharge.

	d.  He adds he was too immature to understand what the Army had to offer him and regrets the mistake he made.  He also states that drug abuse and running with the wrong crowd all of his life led to his current situation and he has been unable to improve his personal situation.  He states the Department of Veterans Affairs (VA) has the best treatment programs in the country and an upgrade of his discharge will allow him to utilize VA treatment centers.

3.  The applicant provides no additional 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 enlisted in the Regular Army for a period of 2 years on 15 January 1973.  At the time he was 17 years of age.  Upon completion of basic training he was assigned to Company V (Student Enlisted), 2nd Battalion, U.S. Army Quartermaster School Brigade/Troop Command, Fort Lee, VA, to attend advanced individual training.

3.  Item 44 (Time Lost under Section 972, Title 10, U.S. Code, and Subsequent to Normal Expiration of Term of Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) for 31 days from 16 April 1973 through 16 May 1973 and for 9 days from 8 June 1973 through 16 June 1973.

4.  On 26 June 1973, the applicant's company commander preferred court-martial charges against him for violation of the Uniform Code of Military Justice (UCMJ), Article 134, with eight specifications, as follows:

* on 23 June 1973, for unlawfully carrying a concealed weapon, a knife with a blade in excess of four inches
* on 22 June 1973, for wrongfully communicating a threat to his commanding officer that he would injure a particular enlisted Soldier
* having been duly restricted, for breaking restriction on 25, 26, 27, 28, 29, and 30 May 1973 (i.e., six specifications)

5.  On 6 July 1973, the applicant consulted with legal counsel.  On 16 July 1973, the applicant voluntarily requested a 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.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.

	a.  He was afforded the opportunity to consult with counsel.  He was advised he might be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the VA, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge.

	b.  He was advised that he could submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant indicated that statements in his own behalf would not be submitted with his request.

6.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with an undesirable discharge.

7.  On 21 July 1973, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the applicant be issued an Undesirable Discharge Certificate.

8.  The applicant's DD Form 214 (Armed Forces of the Unites States Report of Transfer or Discharge) shows he was discharged on 3 August 1973 in accordance with Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial under conditions other than honorable with an undesirable discharge.  He completed 5 months and 9 days of net active service.

9.  On 10 March 1976, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting an upgrade of his discharge.  On 12 January 1977 after consideration of the applicant's military records and all other available evidence, the ADRB determined the applicant's discharge was proper.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

10.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 134.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:

	a.  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, the 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 to an individual who was discharged for the good of the service.

	b.  Chapter 3, 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.

	c.  Chapter 3, paragraph 3-7b, provides that an under honorable conditions discharge 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 applicant contends his undesirable discharge should be upgraded because he had no criminal record prior to entering military service, he was young when he enlisted in the Army, and the allegations against him were misconstrued.

2.  The applicant's contentions were carefully considered.

	a.  The applicant's background, including the absence of a juvenile or  criminal record, was considered when the applicant was granted a waiver to enlist in the U.S. Army with parental consent at 17 years of age.

	b.  Considering the applicant had demonstrated the capacity for satisfactory service by the completion of basic combat training, his contention that he was young is not supported by the evidence of record.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

	c.  The applicant voluntarily submitted a request for discharge in lieu of trial by court-martial.  In addition, the applicant elected not to submit a statement in his own behalf when he had an opportunity to challenge the accuracy of the allegations against him.  Thus, the evidence of record does not support the applicant's contention that the allegations against him were misconstrued.

3.  The applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offenses that led to his discharge far outweigh his overall record.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate and equitable.

4.  The evidence of record shows the applicant was charged with eight specifications under Article 134, UCMJ.  The evidence of record also shows he voluntarily requested discharge in lieu of trial by court-martial and completed less than 6 months of his 2-year enlistment commitment.  In addition, the applicant was AWOL on two separate occasions for a total of 40 days during the period of service under review.  Thus, the evidence of record shows the quality of the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to a general discharge.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans'/medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care and other benefits should be addressed to the VA.

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 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)                                         AR20100018365



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ABCMR Record of Proceedings (cont)                                         AR20100018365



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