IN THE CASE OF:	  

		BOARD DATE:  28 February 2012

		DOCKET NUMBER:  AR20110015635 


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 discharge.

2.  The applicant states:

* he was a young kid at 16 years old
* he never committed a crime
* he was told he would receive a general discharge under honorable conditions

3.  The applicant provides no additional documentation.

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 was born on 21 April 1954.  With parental consent, on
13 October 1971, he enlisted in the Regular Army for a period of 3 years.  He was 17 years, 5 months, and 23 days of age at the time of his enlistment.

3.  The applicant received training at Fort Dix, NJ and Fort Knox, KY.  He completed training and he was awarded military occupational specialty (MOS) 11E (Armor Crewman).  He was transferred to Germany for his first permanent duty assignment.  He arrived in Germany on or about 17 March 1972.

4.  The applicant's Official Military Personnel File (OMPF) contains four records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for:

* willfully disobeying a lawful order on 21 April 1972 not to bring alcohol into the barracks
* assaulting a German national on 31 May 1972 by striking him on the head with a beer bottle
* willfully disobeying a lawful order on 17 April 1973 to get a haircut
* willfully disobeying a lawful order on 9 July 1973 to get out of bed

5.  On 6 September 1973, court-martial charges were preferred against the applicant for:

* operating an unregistered 1971 Honda motorcycle
* resisting apprehension by Military Police
* operating a 1971 Honda motorcycle in a reckless fashion by striking another vehicle
* wrongfully appropriating a 1971 Honda motorcycle valued at $800.00 for a sergeant
* assaulting a sergeant by striking him in the head with his fist

6.  On 6 September 1973, the applicant consulted with legal counsel and requested separation 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.  In so doing, he acknowledged he could be issued an undesirable discharge and he could be deprived of many or all Army benefits.  He declined to submit a statement in his own behalf.

7.  On 13 September 1973, the approving authority, a lieutenant general, accepted the applicant's request for discharge and directed his discharge under the provisions of Army Regulation 635-200, chapter 10, with an Undesirable Discharge Certificate.


8.  Special Orders Number 247, issued by Headquarters, U.S. Army Europe and 7th Army, dated 4 September 1973, erroneously directed the applicant's discharge with a GD.  This order was corrected on 17 September 1973 to direct an undesirable discharge.

9.  On 24 September 1973, the applicant was discharged with an undesirable discharge.

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

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 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.  

12.  Army Regulation 635-200 provides guidance on characterization of service and states in:

	a.  Paragraph 3-7a, 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.

	b.  Paragraph 3-7b, 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 requests a discharge upgrade stating he was young and never committed a crime.

2.  Although he was about 17 1/2 when he enlisted, he successfully completed his training and he was assigned to a permanent duty station.  At the time of his discharge, he was 19 years, 5 months, and 4 days of age.  There was no evidence he was any less mature than any other Soldiers of the same age who successfully completed their periods of service.

3.  He claims he never committed a crime; however, records show he was administered four NJPs for offenses for which could have led to a dishonorable or a bad conduct discharge.

4.  He was also pending court-martial charges that led to his voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial.  Records show his voluntary request for discharge was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

5.  The applicant's request for discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

6.  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)                                         AR20110015635



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ABCMR Record of Proceedings (cont)                                         AR20110015635



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