IN THE CASE OF:	  

		BOARD DATE:  16 October 2012

		DOCKET NUMBER:  AR20120007541 


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, in effect, upgrade of his undesirable discharge.

2.  The applicant states he was only 18 years old and he did not know anything about the justice system.  He was told to take the discharge or go to Fort Leavenworth.  He adds he was not given good counsel to help him about a stolen 8-track tape.

3.  The applicant provides no additional documents in support of his application.

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 enlisted in the Regular Army on 12 August 1974.  He completed training and he was awarded military occupational specialty 71B (Clerk Typist).  The highest rank/grade he attained during his period of service was private (PV2)/E-2.

3.  On 25 February 1975, the applicant received nonjudicial (NJP) punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the prescribed time to his appointed place of duty on 23 February 1975.

4.  On 25 June 1975, court-martial charges were preferred against the applicant for stealing a tape player, two speakers, and about 30 assorted 8-track stereo tapes, of a value of about $282.81, the property of another Soldier.

5.  On 21 July 1975, having consulted with counsel, the applicant voluntarily requested discharge 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 his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged he understood he could receive an undesirable discharge and he might be deprived of all benefits as a result of such a discharge.  In addition, he was advised he may expect to encounter substantial prejudice in civilian life if he was issued an Undesirable Discharge Certificate and he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

6.  The applicant submitted a statement in his own behalf.  He stated it would be to his benefit to get out of the Army.  He stated when he first got to his unit he requested discharge under the Expeditious Discharge Program (EDP), but he changed his mind hoping he could do better; however, he found that he could not.  He adds he never liked the Army and wished to set his goals in a different direction.  He adds he is aware he will lose his burial rights and education, but if he stays in the Army he will probably get into more trouble and end up going absent without leave (AWOL).

7.  On 18 August 1975, a DA Form 3822-R (Report of Mental Status Evaluation) found the applicant mentally responsible, able to distinguish right from wrong, able to adhere to the right, he had the mental capacity to understand and participate in board proceedings, and he met retention standards.

8.  On 19 August 1975, the applicant's unit commander recommended his discharge from the U.S. Army under the provisions of Army Regulation 635-200, chapter 10, with an Undesirable Discharge Certificate.  The commander's reason for the recommendation was his attitude toward military life and his lack of rehabilitative potential.

9.  On 6 October 1975, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an Undesirable Discharge Certificate.

10.  On 24 October 1975, the applicant was discharged accordingly.  He completed 1 year, 2 months, and 13 days of total active service.

11.  On 12 August 1977, after careful consideration of the applicant's military records and all other available evidence, the Army Discharge Review Board (ADRB) determined he was properly discharged.  As a result, his request for discharge upgrade was denied.

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

	a.  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 VA 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.

	b.  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.

	c.  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's contentions were carefully considered and found to be insufficient in merit.  There is no evidence and the applicant did not present any evidence that shows his discharge was unjust and or unfair.

2.  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.  After consulting with legal counsel and being advised of his rights, the applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  Therefore, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would have jeopardized his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.

4.  Records show the applicant was nearly 20 years old at the time of his offense. There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

5.  In view of the foregoing, there is no basis for granting the applicant 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 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)                                         AR20120007541



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ABCMR Record of Proceedings (cont)                                         AR20120007541



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