IN THE CASE OF:	  

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20110011476 


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 to a general discharge.

2.  The applicant states he was young and made mistakes but he had served the majority of his period of obligated active duty service.  His youthful mistakes should not be held against him for a lifetime, especially in a country that believes in second chances.

3.  The applicant provides a copy of his DD Form 214 (Report of Release 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 on 26 February 1969 for a period of 3 years at the age of 17 with a 10th grade education.  He completed training and he was awarded military occupational specialty 13A (Field Artillery Basic).

3.  On 18 November 1970, a summary court-martial found the applicant guilty of being absent without leave (AWOL) from 8 September 1970 to 4 October 1970.

4.  Prior to 16 February 1971, the applicant's conduct and efficiency ratings are shown as "excellent" except for the period 7 August 1970 to 25 November 1970 which was shown as "good."

5.  On 22 September 1971, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL for 2 days.

6.  On 11 January 1972, court-martial charges were preferred against the applicant for being AWOL from 11 October 1971 to 25 October 1971 and from
3 November 1971 to 11 January 1972.

7.  On 14 January 1972, having consulting with counsel and being advised of his rights and options, the applicant submitted a voluntary request under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) , chapter 10, for the good of the service – in lieu of trial by court-martial.  He acknowledged that he was guilty of the charges or lesser included charges and that, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.  He elected to submit a statement in his own behalf; however, there is no such statement in his available records.

8.  In 17 January 1972, his company and intermediate commander recommended approval of his request for discharge with issuance of an undesirable discharge.

9.  On 26 January 1972, the discharge authority (a major general) approved the applicant's discharge under the provisions of Army Regulation 635-200,
chapter 10 with an Undesirable Discharge Certificate and reduction to the rank/grade of private (PV1)/E-1.

10.  The applicant was accordingly discharged on 31 January 1972.  He completed 2 years, 6 months, and 24 days of total active service with 132 days of time lost.
11.  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 Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood that he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An undesirable discharge certificate would normally be furnished to an individual who was discharged for the good of the service. 

12.  Army Regulation 635-200, paragraph 3-7b, states that a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

13.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  Although applicant was 17 years of age at the time of enlistment, he had satisfactory completed training and had served for a significant portion of his obligated service with good and excellent conduct and efficiency ratings.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore are appropriate considering all the facts of the case.

3.  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)                                         AR20110011476



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ABCMR Record of Proceedings (cont)                                         AR20110011476



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