IN THE CASE OF:	  

		BOARD DATE:	    10 April 2012

		DOCKET NUMBER:  AR20110020237 


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.

2.  He states he was young and scared to stay in.  He states his squad leader was going to hurt him if he did not take the blame for his squad leader's joint of marijuana, unjustly leading to his requesting a discharge because of this incident.

3.  He provides his DD Form 214 (Report of Separation from Active Duty). 

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.  His military records show he enlisted in the Regular Army, on 16 November 1973, at the age of 18.  He completed training, was awarded the military occupational specialty of light weapons infantryman, and was promoted to private first class/E-3.

3.  On 1 August 1974, he was given a letter of reprimand.  The letter of reprimand indicated the applicant had displayed the lowest of personal standards and had actively defied the cadre of his company.  His continued misconduct and defective attitude had reflected upon him as a Soldier.  His intentional failure to conform to established policies had been the rule rather than the exception. 

4.  He accepted nonjudicial punishment (NJP) on 11 October 1974 for:

* failing to go at the time prescribed to his appointed place of duty
* with intent to defraud and for the procurement of lawful currency, wrongfully and unlawfully making a check without sufficient funds for payment on three different dates

5.  His complete discharge packet is not contained in his records.  However, on 2 January 1975, he was discharged under the provisions of Army Regulation 
635-200 (Personnel Separations), chapter 10, for the good of the service - in lieu of court-martial, with issuance of a DD Form 258A (Undesirable Discharge Certificate).  The DD Form 214 he was issued shows he completed 1 year, 1 month, and 15 days of net active service for the period covered by the form.

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

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10, in effect at the time, stated a member who had 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(s) charged, the 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 to an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate. 

	c.  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 applicant’s age at time of enlistment was noted.  However, many Soldiers were enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly-issued discharge.

2.  He received NJP for failing to go at the time prescribed to his appointed place of duty and for wrongfully and unlawfully making a check without sufficient funds for payment on three different dates.  That misconduct alone would have rendered his service unsatisfactory.

3.  He was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  While he contends he requested discharge because he took the blame for his squad leader's joint of marijuana, the fact remains that he would have voluntarily requested discharge in lieu of a trial by court-martial.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

4.  While his discharge packet is not available, the Board starts its consideration with a presumption of regularity, i.e., that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  Based on the foregoing, there is an insufficient basis upon which to upgrade the applicant's discharge to an honorable discharge or to a general discharge under honorable conditions.


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)                                         AR20110020237



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ABCMR Record of Proceedings (cont)                                         AR20110020237



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