IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20100028981 


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, in effect, that his undesirable discharge be upgraded.

2.  The applicant states he was very young and it was his first time away from home when he joined the U.S. Army.  He also states: 

   a.  He injured his knee while doing physical training during basic combat training.  After being reassigned to Fort Leonard Wood, MO, he had an operation on his knee.

   b.  He was a good Soldier, did what was asked of him, and also completed his education and training while in the Army.

   c.  He acknowledges that he made some mistakes during his service, but none that would justify the type of discharge and character of service he received.

   d.  He would like to join veteran groups and also be eligible for programs offered by the Department of Veterans Affairs (VA).

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).


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 22 December 1972.  At the time he was 19 years of age.

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for failing to obey a lawful order issued by a noncommissioned officer on 25 January 1973.  His punishment consisted of a forfeiture of $71.68 pay for 1 month, 14 days of restriction, and 14 days of extra duty.

4.  On 5 March 1973, the applicant was granted a waiver of the Basic Physical Fitness Test based on his commander's assessment that the applicant could have successfully completed basic combat training had he not been placed on a temporary profile (i.e., for water on the left knee).

5.  At a special court-martial on 8 May 1973, the applicant was found guilty of the charges and specifications of:

   a.  on 10 April 1973, stealing 8 packages of cigarettes the property of the Fort Lee Post Exchange;

   b.  on 5 and 6 April 1973, unlawfully striking a Soldier in the head with his hands; and on 5 April 1973, unlawfully striking a Soldier in the face with his fist;

   c.  on 11 April 1973, wrongfully communicating a threat to injure a Soldier;

   d.  He was sentenced to be reduced to private (E-1), to forfeit $50.00 pay for 4 months, and to be confined at hard labor for 4 months; and 

   e.  On 25 May 1973, the convening authority approved the sentence and ordered it executed.

6.  Headquarters, U.S. Army Engineer Center, Fort Belvoir, VA, Special Orders Number 112, dated 4 June 1973, transferred the applicant from the Central Confinement Facility, Fort Belvoir, VA, to the U.S. Army Retraining Brigade, Fort Riley, KS, on 5 June 1973, for further confinement.

7.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in 
item 38 (Record of Assignments) he was assigned to Company C, 2nd Battalion, 4th Advanced Individual Training Brigade, U.S. Army Training Center, Fort Leonard Wood, MO, on 19 August 1973 for training in military occupational specialty (MOS) 12A (Pioneer).

8.  The applicant's military personnel records do not contain a copy of a charge sheet or his administrative separation packet.

9.  Headquarters, U.S. Army Training Center, Engineer, Fort Leonard Wood, MO, Special Orders Number 325, dated 21 November 1973, promulgated the applicant's discharge under the provisions of Army Regulation 635-200 [Personnel Separations - Enlisted Personnel], chapter 10, for the good of the service and the issuance of an (Undesirable Discharge Certificate) effective 
23 November 1973.

10.  The applicant's DD Form 214 shows he entered active duty this period on
22 December 1972 and he was discharged on 23 November 1973 in accordance with Army Regulation 635-200, chapter 10, with his service characterized as under conditions other than honorable.  He completed 7 months and 18 days of net active service this period and he had 105 days of time lost (from 12 April through 25 July 1973).

11.  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.

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

	a.  Chapter 10 provides that a member who committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

   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 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.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his undesirable discharge should be upgraded because he was very young and immature, and the mistakes he made during his service did not justify the type of discharge and character of service he received.

2.  Considering the applicant satisfactorily completed basic combat training, his contention that he was young and immature 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.

3.  Absent evidence to the contrary, it is presumed that the applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was warranted by the gravity of the offenses for which he was charged.  It is also presumed that it was voluntary, administratively correct, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  Thus, it is concluded that the applicant was properly discharged for the good of the service and that he was equitably discharged with a character of service of under conditions other than honorable.

4.  Records show the applicant received NJP for disobeying a lawful order, and he was convicted at a special court-martial for stealing, unlawfully striking three different Soldiers, and threatening another Soldier.  In addition, he completed less than 8 months of his 2-year active duty obligation.  Thus, the evidence of record refutes the applicant's contention that the mistakes he made during his service did not justify the type of discharge and character of service he received.  Therefore, 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 an honorable discharge.  Moreover, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

5.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  The applicant fails to provide such evidence.  Therefore, there is no basis for granting the requested relief.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veteran organizations or veteran's 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 veteran's 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 or veteran service organizations.

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)                                         AR20100028981



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ABCMR Record of Proceedings (cont)                                         AR20100028981



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