BOARD DATE:	  25 October 2011

		DOCKET NUMBER:  AR20110010034 


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.

2.  The applicant states he was young, dumb, and he did not have the proper defense or knowledge.

3.  The applicant 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 enlisted in the Regular Army on 15 August 1972 for a period of 3 years at 17 years of age.  He completed training and he was awarded military occupational specialty 12A (Pioneer).  The highest rank/grade he attained during his military service was private (PV2)/E-2.
3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* On 1 June 1973, for disobeying a lawful order and using profane language to a police officer
* On 7 June 1973, for sleeping on duty, two instances of disobeying a lawful order, failing to go at the time prescribed to his appointed place of duty, failing to appear in a proper uniform, and breaching the peace by using profane language
* On 20 August 1973, for failing to go at the time prescribed to his appointed place of duty and failing to report to guard duty

4.  On 20 August 1973, court-martial charges were preferred against him for:

* Falsifying official documents
* Submitting false statements
* Two specifications of assaulting military policemen (MP) in the execution of their duties
* Resisting apprehension by an MP
* Disorderly conduct
* Being absent without leave (AWOL)
* Stealing personal property

5.  On 5 September 1973, 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 discharge or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights available to him.  Following consultation with legal counsel, he voluntarily requested 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.

6.  In his request for discharge, he acknowledged he understood if his request were approved he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life both Federal and State laws.


7.  On 7 September 1973, the applicant's immediate commander recommended approval of his discharge for the good of the service with the issuance of an Undesirable Discharge Certificate.  The commander stated within 2 weeks of arrival to the unit, the applicant had 26 charges against him under the UCMJ.  He violated the UCMJ daily and he had serious encounters with almost every facet of military authority.  His actions were of such a serious nature and were so numerous that the most expedient means of dealing with the individual would be in the best interest of the Soldier and the Army.

8.  On 10 and 14 September 1973, his intermediate commanders recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.

9.  On 19 September 1973, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate and reduction to the private (PV1)/E-1.

10.  On 5 October 1973, he was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in the rank/grade of PV1/E-1 with a character of service of under other than honorable conditions and issuance of an Undesirable Discharge Certificate.  He completed 1 year, 1 month, and 21 days of total active service.

11.  There is no indication he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, 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.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.  


13.  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.

14.  Army Regulation 635-200, paragraph 3-7b, provides that 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 evidence of record shows the applicant was charged with the commission of offenses 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.  As such, he voluntarily requested discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  His record of service shows he received NJP on three separate occasions for disobeying lawful orders, failing to go at the time prescribed to his place of duty, and breaching the peace.  He was subsequently charged with falsifying official documents, submitting false statements, assaulting MPs, disorderly conduct, being AWOL, and stealing personal property which was the basis preferral of court-martial charges leading to his request for voluntary discharge.

3.  Based on his record of misconduct, 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 an honorable or a general discharge.

4.  The applicant contends that his discharge should be upgraded because he was young and dumb at the time of his service.  Records show that he was 18 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110010034



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ABCMR Record of Proceedings (cont)                                         AR20110010034



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