IN THE CASE OF:	  

		BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100028848 


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 (UD) to an honorable discharge.

2.  He states, in effect, his misconduct was due to his family situation and he had to take care of his brother who was causing grief to his grandmother.  His grandmother raised him from 3 years of age after his mother's sudden death.  He was 17 years of age, very young, with no parents.  He regrets what happened and would like to do it over properly.  He should have stayed home and cared for his brother instead of joining at an early age.  He is requesting a change to his discharge so his son can bury him with honors.  He thought joining the Army was the easy way out and left his siblings behind.  He would also like his discharge upgraded to honorable for health service provided by the Army.  

3.  He provides no additional evidence.

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 military records show he enlisted in the Regular Army (RA), in pay grade E-1, on 30 December 1972, for 2 years.  On the date of his enlistment in the RA, he was 17 years and 10 months of age.  He did not complete advanced individual training; therefore, he retained his military occupational specialty (MOS) of 09B (trainee).  

3.  On 22 February 1973, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty on 17 February 1973.

4.  He was reported absent without leave (AWOL) on 22 April 1973 and dropped from the rolls of his unit as a deserter on 17 May 1973.  He was apprehended by civilian authorities and he was returned to military control on 6 July 1973.

5.  He was again reported AWOL on 31 July 1973 and dropped from the rolls on the same day.  He was apprehended by civilian authorities on 14 September 1973 and confined to the Louisville City Jail, Louisville, KY, for robbery.

6.  On 24 September 1973, a DD Form 458 (Charge Sheet) was prepared by the Commander, Special Processing Company, Fort Knox, KY.  He was charged with two specifications of being AWOL from 22 April to 6 July 1973 and from 31 July to 14 September 1973.

7.  On 28 September 1973, the Commander, Special Processing Company, Fort Knox, recommended the applicant be tried by special court-martial.  The commander also stated it was his opinion that the applicant should be eliminated from the service.  

8.  All the documents containing the facts and circumstances surrounding his discharge are not present in the available records.  His DD Form 214 shows he was discharged in the rank/grade of PV1/E-1 on 26 October 1973 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 10-1, and issued a UD Certificate.  He was credited with 5 months and 21 days of active service and 128 days of time lost.



9.  There is no evidence of record and he did not provide any evidence that shows he requested assistance through his chain of command for any family or personal problems he was having that prevented him from completing his term of enlistment.  

10.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, 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 UD was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

12.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

13.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his UD should be upgraded to honorable was carefully considered.  The evidence of record shows he enlisted in the Regular Army on 30 December 1972 for 2 years.  He did not complete training for assignment in an MOS and he was never promoted beyond pay grade E-1.  He was reported AWOL from 22 April to 6 July 1973 and from 31 July to 14 September 1973.  He was apprehended by civilian authorities on 14 September 1973 and confined on charges of robbery.  The Special Processing Company Commander recommended he be tried by special court-martial.

2.  His contention that his youth impacted his ability to serve successfully is without merit.  He was 17 years and 10 months of age when he enlisted in the RA.  He was 18 years and 2 months of age when he went AWOL.  There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  

3.  His record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  In the absence of evidence to the contrary the applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a fully honorable or general discharge.

5.  His desire to have his UD upgraded so that he can qualify for medical and/or other benefits administered by the Department of Veterans Affairs and other Federal and State social services organizations is acknowledged; however, the Board does not grant relief solely for the purpose of an applicant qualifying for benefits administered by these agencies.

6.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100028848





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ABCMR Record of Proceedings (cont)                                         AR20100028848



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