BOARD DATE:	  19 January 2012

		DOCKET NUMBER:  AR20110014273 


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 his under other than honorable conditions discharge be upgraded to a general under honorable conditions discharge.

2.  He states he was 22 years old at the time and made a mistake.  He adds that he has never had an "error" since then.

3.  He does not provide any 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 record shows he enlisted in the Regular Army on 30 July 1973 at the age of 18.

3.  On 22 May 1975, he was convicted by a special court-martial for wrongfully appropriating a car of a value of $1,050.00.

4.  On 5 December 1975, charges were preferred against him for willfully destroying a government radio of a value of $1,500.00 and stealing a radio of a value of $1,000.00.

5.  On 18 December 1975, he consulted with counsel and he voluntarily 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.

6.  The applicant signed his request for discharge which showed that he was making the request under his own free will, that he was afforded the opportunity to speak with counsel, that he might be furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all VA benefits, and that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his behalf.  However, his statement is illegible due to the passage of time.

7.  On 29 January 1976, the appropriate authority approved his request for discharge and directed the issuance of an undesirable discharge.

8.  On 9 February 1976, he was discharged accordingly.  He was 21 years old at the time of his discharge.  His DD Form 214 shows he received an under other than honorable conditions character of service.  It also shows he completed 2 years, 5 months, and 7 days of net active service during this period with 34 days listed as lost time.

9.  On 29 January 1987, he appealed to the Army Discharge Review Board (ADRB) for an upgrade his discharge.  On 24 March 1989, the ADRB denied his request for a discharge upgrade stating the board determined that he was properly and equitably discharged.

10.  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, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be directed for an individual who was discharged for the good of the service.

11.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The records show the applicant was 18 years of age at the time of his enlistment and 21 years old at the time of his discharge.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Therefore, his contention that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge.

2.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows he voluntarily requested separation for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.

3.  His record of indiscipline which includes conviction by a special court-martial and 34 days of lost time does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a discharge upgrade.

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)                                         AR20110014273





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ABCMR Record of Proceedings (cont)                                         AR20110014273



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