IN THE CASE OF:	  

		BOARD DATE:	    6 March 2012

		DOCKET NUMBER:  AR20110017906 


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 undesirable discharge and copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states he was given bad advice.  He also states he was 17 years old when he enlisted.

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's records show he enlisted in the Regular Army on 23 January 1970 at 17 years and 7 days of age.  He completed training and was awarded military occupational specialty 13A (Field Artillery Basic).

3.  On 15 February 1971, he was discharged for the purpose of immediate reenlistment.  His DD Form 214 for this period of service shows he completed 1 year and 22 days of active service and he had 1 day of lost time.

4.  On 16 February 1971, he reenlisted in the Regular Army.  He was assigned to the 2nd Battalion, 78th Artillery, Bamberg, Germany.

5.  On 25 June 1971, court-martial charges were preferred against him for one specification of being disrespectful to a commissioned officer by threatening to kill him and one specification of striking a commissioned officer.

6.  He subsequently consulted with legal counsel who advised him 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 Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.

7.  On 2 July 1971, an investigating officer was appointed to investigate the charges against the applicant.  The investigating officer interviewed several witnesses who verified the circumstances surrounding the court-martial charges.

8.  In a report, dated 9 July 1971, the investigating officer stated the defense counsel's argument and recommendations on behalf of the applicant were considered in arriving at his recommendation for disposition of the charges.  He concurred with the defense counsel's opinion that the maximum court-martial sentence of 10 years of confinement and a dishonorable discharge was not warranted in the case.  However, it was his opinion that the violations of Article 90, UCMJ, were so serious in nature that disposition of charges should be made by trial by a general court-martial.

9.  On 13 July 1971, the applicant's senior commander recommended trial by a general court-martial.

10.  On 20 July 1971, the applicant 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.  He acknowledged he understood if his discharge request were approved, he might 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.

11.  On 3 September 1971, 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 Army Regulation 635-200, chapter 10, with a separation program number of 246.  The separation authority directed the issuance of an Undesirable Discharge Certificate.

12.  On 17 September 1971, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions character of service.  The DD Form 214 he was issued shows he completed 7 months and 1 day of active service during this period of service.  He completed a total of 1 year, 7 months, and 23 days of creditable active service with 1 day of lost time.

13.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  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.  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 veterans' benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  At the time, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

15.  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.

16.  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 evidence of record shows the applicant was charged with the commission of an offense 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.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  Prior to submitting his request for a discharge, he was properly and fully advised by his counsel of the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.

3.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

4.  The applicant will be provided copies of his DD Forms 214 with this Record of Proceedings.

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 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)                                         AR20110017906



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ABCMR Record of Proceedings (cont)                                         AR20110017906



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