IN THE CASE OF:
BOARD DATE: 15 November 2012
DOCKET NUMBER: AR20120008039
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 undesirable discharge.
2. The applicant states:
a. his discharge is in error due to his youth and immature attitude toward authority. Being 1 of 10 children growing up without a father figure and poor, he was never exposed to any type of structure that required discipline on his part. He sought refuge in the Army in an effort to escape the drugs and gang-infested streets of Philadelphia, PA.
b. he has felt shame over his present military record and it wasn't until now that he realized he was not emotionally equipped to function on a level that would allow any chance of success in a military structure. He can't go back to the past with his present attitude and do things different although he wishes he could.
c. he is now 58 years old, married 35 years, and has 4 sons and
6 grandchildren, three of whom are presently serving our country in Afghanistan. Over the years he has earned two Master degrees and has become a productive member of society. He has spent the past 30 years working in the healthcare industry.
3. The applicant provides:
* Diploma
* Two college transcripts
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 applicants 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 applicants 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 4 November 1953. He enlisted in the Regular Army on 20 December 1971 for a period of 2 years. He completed basic combat training.
3. On 10 April 1972, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 6 March 1972 to 1 April 1972.
4. He went AWOL on 6 May 1972 and returned to military control on 23 March 1973. On 30 March 1973, charges were preferred against the applicant for the AWOL period. Trial by special court-martial was recommended.
5. On 4 April 1973 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 not to submit a statement in his own behalf.
6. On 11 April 1973, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.
7. He was discharged on 20 April 1973 with an undesirable discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He completed a total of 4 months and 18 days of total active service.
8. On 14 November 1977, the Army Discharge Review Board denied his request for a discharge upgrade.
9. 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.
10. 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.
11. 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. He contends his discharge is in error due to his youth and immature attitude toward authority. However, age is not a sufficiently mitigating factor. He was age 18 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. He contends he has earned two Master degrees and has been a productive member of society since his discharge. However, good post-service conduct alone is normally not a basis for upgrading a discharge.
3. 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. He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so.
4. The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case.
5. His brief record of service included one NJP and 348 days of lost time. As a result, 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 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) AR20120008039
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ABCMR Record of Proceedings (cont) AR20120008039
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