BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100028904 


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 a general, under honorable conditions discharge.

2.  He states that due to poor legal counsel his options regarding the incident were never fully explained.  He was not fully aware at such a young age of the ramifications accepting this type of discharge would have on his life.

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 29 July 1974, for 3 years.  On the date of his enlistment in the RA, he was 18 years and 9 months of age.  He completed training and was awarded military occupational specialty 95B (Military Police).  

3.  On 16 July 1975, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for wrongfully appearing out of uniform on 14 July 1975.

4.  On 16 September 1976, a DD Form 458 (Charge Sheet) was prepared by the Commander, Battery E, 6th Battalion, 52nd Air Defense Artillery.  He was charged with one specification each of the following on 11 September 1976:

* Operating a military vehicle without a valid military operator's license
* Wrongfully appropriating a U.S. Army 1/4 ton utility truck, of a value of about $2,400.00
* Operating a vehicle, a U.S. Army 1/4 ton truck, while drunk in a reckless manner by crossing the center line and striking an oncoming vehicle
* Being negligent and damaging, by failing to operate properly, a U.S. Army 1/4 ton truck with said damage being in the sum of about $1,700.00

5.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his available military record shows that on 13 October 1976 the separation authority approved his request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10 and directed the issuance of a UD and reduction to pay grade E-1.  

6.  Accordingly, he was discharged in pay grade E-1 on 15 November 1976, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial and issued a UD.  His service was characterized as under conditions other than honorable.  He was credited with completing 2 years, 3 months, and 17 days of active service.

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

8.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 stated 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.  A UD would normally be furnished an individual who was discharged for the good of the Service.

9.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded because he received poor counsel and his options were never fully explained to him and due to his youth he was not fully aware what accepting this type discharge would mean were carefully considered.  The evidence of record shows he was 18 years and 9 months of age when he enlisted in the RA.  He was 19 years and 11 months of age at the time of the incident.  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 or that he did not understand the charges against him and type of discharge he could receive and did receive. 

2.  His record is void of the facts and circumstances which led to his voluntary discharge.  However, his available military record shows he was charged with one specification each of operating a military vehicle without a valid military operator's license, wrongfully appropriating a U.S. Army 1/4 ton utility truck, operating a government vehicle while drunk in a reckless manner by crossing the center line and striking an oncoming vehicle, and being negligent and damaging by failing to operate properly a government vehicle.  The separation authority approved his request for a discharge for the good of the service in lieu of trial by a court-martial on 13 October 1976.  He was discharged on 15 November 1976 under the provisions of chapter 10 of Army Regulation 635-200.

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, after consulting with counsel, required him to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provided no information that would indicate the contrary.  Further, it is presumed his discharge accurately reflects his overall record of service during this period of service and elements of the offenses charged.

4.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100028904





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ABCMR Record of Proceedings (cont)                                         AR20100028904



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