IN THE CASE OF:	  

		BOARD DATE:	 21 July 2011 

		DOCKET NUMBER:  AR20110000004 


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 discharge under other than honorable conditions (UOTHC).

2.  The applicant states he regrets what he did and at the time of his actions he was young and not thinking straight.  He states he thought he was not going to accomplish anything and that's why he signed the chapter 10 discharge.  He apologizes for his actions and regrets them until this day.

3.  The applicant provides no additional evidence in support of his request.

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 records show he was born on 2 July 1955.  On 22 August 1973, he enlisted in the Regular Army for 3 years when he was 18 years, 1 month, and 21 days of age.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 35K (Avionics Mechanic).  The highest rank/grade he attained during his military service was specialist/E-4.

3.  Charges under the Uniform Code of Military Justice (UCMJ) were initiated against him for:

* using disrespectful language towards his superior noncommissioned officer (NCO)
* willfully disobeying the order given by his superior NCO
* wrongfully communicating a threat to his superior NCO
* wrongfully communicating a threat to a fellow Soldier
* being absent without leave (AWOL) from his organization, Company A, 159th Aviation Battalion, 101st Airborne Division, Fort Campbell, KY, from on or about 23 May 1975 to on or about 3 June 1975

4.  On 5 June 1975, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the possible effects of a request for discharge, and of the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

5.  The applicant's request for discharge indicated he was making the request of his own free will, he had not been subjected to any coercion, and he had been advised of the implications that were attached to his request.  He also indicated he understood by requesting a discharge, he was admitting guilt to the charges against him or to a lesser-included offense that also authorized the imposition of a bad conduct discharge.  He further acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He did not submit a statement in his own behalf.

6.  On 6 June 1975, his immediate and intermediate commanders recommended approval of his discharge with the issuance of a UOTHC Discharge Certificate.

7.  On 27 June 1975, the separation authority approved his request for discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200, and directed that he be issued a UOTHC Discharge Certificate.  The applicant was accordingly discharged on 2 July 1975 in pay grade E-1.

8.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 1 year and 10 months of active service and he had 11 days of lost time.

9.  On 13 September 1976, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has 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 UOTHC discharge is normally considered appropriate.

11.  Army Regulation 635-200, 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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge under other than honorable conditions should be upgraded because he was young and not thinking straight.


2.  His contention that his youth made him do the wrong thing and impacted his ability to serve successfully is without merit.  He was 18 years, 1 month, and 21 days of age when he enlisted in the Regular Army.  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 terms of service.

3.  The applicant's records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10, Army Regulation 635-200, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  His records show he used disrespectful language towards his superior NCO, willfully disobeyed the order given by his superior NCO, wrongfully communicated a threat to his superior NCO, wrongfully communicated a threat to a fellow Soldier, and was AWOL for 11 days.

5. 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 rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

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)                                         AR20110000004



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ABCMR Record of Proceedings (cont)                                         AR20110000004



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