IN THE CASE OF:	  

		BOARD DATE:	  1 November 2012

		DOCKET NUMBER:  AR20120008349 


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, an upgrade of his undesirable discharge (UD) to an honorable discharge.

2.  The applicant states that while his mother was out of state, his aunt, who was not his legal guardian, told his recruiter she was his legal guardian and signed documents that allowed him to join the Army at the age of 17.  His mother did not become aware of his enlistment until a later date.  After he joined the Army, his grandmother became very ill and he needed to help out his family because both his father and grandfather were gone.  There was no man in the house; he decided to just go home.  Later, he had an opportunity to appear before a hearing, but it was going to take a long time.  Instead, he was offered a discharge and he took it because he would not have to wait.  He contends he was young, dumb, and not thinking about the future.  He is sorry for his mistake and would like to have his discharge changed.

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 18 April 1956.  He enlisted in the U.S. Army Reserve Delayed Entry Program on 19 April 1973 at the age of 17.  He enlisted in the Regular Army on 15 June 1973.  Upon completion of initial entry training he was awarded military occupational specialty 13B (Field Artillery Crewman).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.  However, at the time of discharge he held the rank/grade of private (PV1)/E-1.

3.  His record contains:

	a.  a DD Form 398 (Statement of Personal History), dated 15 April 1973, whereon he indicated C_____ D____ was his guardian.  He authenticated this document with his signature and it was witnessed by C_____ D____ who also signed the form.

	b.  A DD Form 373 (United States Armed Forces - Consent, Declaration of Parent or Legal Guardian), dated 18 April 1973, which shows C_____ D____ was his guardian at the time and contains the following statement "I/we certify that the above applicant has no other legal guardian than me/us, and I/we hereby consent to his/her enlistment in the service or component of the Armed Forces as indicated above, subject to all the requirements and lawful command of the officers who may, from time to time, be placed over him/her; and I/we certify that no promise of any kind has been made to me/us concerning assignment to duty or promotion during his/her enlistment as an inducement to me/us to sign this consent; and I/we relinquish all claim to his/her service and to any wages or compensation for such service."  This form was signed by C_____ D____ as his guardian and witnessed by a recruiting officer or recruiter.

	c.  an Enlistee's Statement, dated 19 April 1973, whereon he certified that neither his recruiter, nor his guidance counselor had advised him to conceal any mental, moral, or physical defects.  He also certified that he had been advised he must disclose any and all police, court, or juvenile record prior to enlistment and that his enlistment documents were full, true, and correct.  He authenticated this document with his signature.

	d.  a DA Form 20 (Enlisted Qualification Record) which shows he was charged and found guilty by a special court-martial of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by departing his unit in an absent without leave (AWOL) status on three occasions between 17 June 1972 and 7 September 1972.

	e.  a DD Form 458 (Charge Sheet), dated 4 April 1974, that shows court-martial charges were preferred against the applicant for violating Article 86 of the UCMJ by departing his unit in an AWOL status on three occasions between 12 November 1973 and 26 March 1974.

4.  On 11 April 1974, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for 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 for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected to submit a statement in his own behalf wherein he stated his mother moved away and left all of her children with his aunt who already had a child and he enlisted in the Army to get away from it all.  When his grandmother became ill, he was needed at home to help support the family.  He inquired about getting a hardship discharge, but was informed Army rules required legal guardianship for a minimum of 5 years in order to be eligible for a hardship discharge.

5.  The applicant's chain of command recommended approval of his request with the issuance of an Undesirable Discharge Certificate.  On 17 April 1974, the separation authority approved the applicant's discharge request and directed that he be reduced in grade to the lowest enlisted grade and discharged under the provisions of Army Regulation 635-200, chapter 10 and furnished an Undesirable Discharge Certificate. 

6.  His DD Form 214 (Report of Separation from Active Duty) shows that on         2 May 1974, he was issued an Undesirable Discharge Certificate.  He completed 6 months and 14 days of creditable active service with 124 days of time lost due to being AWOL or in confinement.  Item 27 (Remarks) shows the entry "discharge for the good of the service."

7.  The applicant's record is void of any evidence and he has failed to provide any evidence that shows he ever submitted a request for a hardship discharge or sought assistance from his chain of command with copeing with his family problems.

8.  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.

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

	a.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a UD was considered appropriate appropriate at the time.

	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 contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  Records show that the applicant and his aunt both certified she was his legal guardian at the time of his enlistment.  In the written statement accompanying his discharge request he stated his mother had abandoned him and his sibling with his aunt prior to his enlistment.  Therefore, in the absence of evidence to the contrary; the applicant's allegation that his aunt was not his guardian is unsubstantiated and insufficiently mitigating to grant the requested relief.

3.  The applicant was 17 and 18 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

4.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, 
chapter 10 to avoid a trial by court-martial which may have resulted in a felony conviction.

5.  The applicant's record shows that during the processing of his discharge request, he acknowledged his understanding of the hardship discharge process, but declined pursuing that option in favor of severing ties with the Army as soon as possible.

6.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20120008349



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120008349



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1