IN THE CASE OF:	  

		BOARD DATE:  11 September 2012

		DOCKET NUMBER:  AR20120004841 


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 to honorable.

2.  The applicant states:

* he was very young and immature
* he was in Company B, 1st Battalion, 504th Infantry, 82nd Airborne Division
* he was issued a permanent "3" physical profile for his feet
* he wanted to go to Vietnam, instead they terminated his jump status because the doctor said he could not jump anymore
* he was very angry to leave the 82nd Airborne Division because he worked so hard to get in

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 was born on 25 March 1954.  He enlisted in the Regular Army at 18 years of age on 12 May 1972 for a period of 3 years.  He completed basic combat training and basic airborne training.  He was assigned to Company B, 1st Battalion, 504th Infantry, 82nd Airborne Division, at Fort Bragg, NC, for advanced individual training (AIT).

3.  On 25 October 1972 while in AIT, he was convicted by a special court-martial of treating a sergeant/E-5 with contempt.

4.  On 27 November 1972, nonjudicial punishment was imposed against the applicant for failing to repair, disobeying lawful orders (two specifications), and using disrespectful language.

5.  On 28 November 1972, he was physically disqualified for airborne duty.

6.  After completing AIT, he was assigned to Fort Jackson, SC, with a reporting date of 2 February 1973.

7.  He was absent without leave (AWOL) on 2 February 1973 and he returned to military control on 31 March 1974.  On 15 April 1974, charges were preferred against him for his period of AWOL.

8.  On 24 April 1974 after consulting with counsel, the applicant submitted a request for 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.  In his request he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated:

* he wanted to get out of the Army because the Army has not done him any good
* no one understands him
* he has been in trouble ever since he got in the Army
* he has a lot of family problems and the Army is messing around with his married life
* he doesn't want to lose his wife and child 
* he would be AWOL again

9.  On 13 May 1974, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

10.  On 6 June 1974, he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 8 months and 26 days of total active service with 446 days of lost time.

11.  On 5 January 1978, the Army Discharge Review Board (ADRB) denied his request for a discharge upgrade.  On 12 January 1982, the ADRB again denied his request for a discharge upgrade.

12.  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 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.

13.  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.

14.  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 applicant contends he was very young and immature.  However, age is not a sufficiently mitigating factor.  He was 18 years of age when he enlisted and successfully completed basic combat training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

2.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.

3.  Since his brief record of service included one imposition of nonjudicial punishment, one special court-martial conviction, and 446 days of lost time, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

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)                                         AR20120004841



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ABCMR Record of Proceedings (cont)                                         AR20120004841



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