BOARD DATE:	  4 December 2012

		DOCKET NUMBER:  AR20120008500 


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 his undesirable discharge be upgraded to a general discharge.

2.  The applicant states he wants his discharge upgraded in the hope of receiving Department of Veterans Affairs (VA) benefits.  He was young when he enlisted in the Army and he did not understand the seriousness or the happiness of serving his country.  He came from a dysfunctional family and did not have the proper training to obey authority.  After entering the Army, he got into drugs and other bad habits.  He is sorry for not performing his duties as a Soldier.  He is 59 years of age now and still endeavors to correct the bad behavior that he learned.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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's records show he enlisted in the Regular Army on 10 February 1971 at the age of 18 years and 4 months.  He completed basic combat training and on 3 May 1971 he was assigned to Fort Gordon, GA, for advanced individual training (AIT).

3.  On 18 June 1971, he was convicted by a special court-martial of one specification each of unlawfully pushing a noncommissioned officer (NCO), disobeying a lawful order, and wrongfully communicating a threat to an NCO. 

4.  He was sentenced to reduction to the rank/grade of private/E-1, a forfeiture of $50.00 pay for 3 months, and restriction for 60 days.

5.  On 6 July 1971, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty.

6.  On 4 August 1971, he received NJP under the provisions of Article 15, UCMJ, for being absent without leave (AWOL) from 1 to 2 August 1971.

7.  On 16 August 1971, he was assigned to Fort Sill, OK, for AIT.  He successfully completed AIT and was awarded military occupational specialty 13A (Field Artillery Crewmember).

8.  On 15 October 1971, he was assigned to the 2nd Battalion, 20th Field Artillery, Fort Carson, CO.

9.  On 17 December 1971, he was convicted by a special court-martial of one specification each of wrongfully setting fire to an inhabited dwelling and wrongfully communicating a threat to his immediate commander.

10.  He was sentenced to a forfeiture of $115.00 pay for 5 months and confinement for 5 months.

11.  On 22 October 1972, he was assigned to the 1st Battalion, 2nd Field Artillery, Germany.

12.  On 20 November 1972, he received NJP under the provisions of Article 15, UCMJ, for unlawfully hitting an NCO in the execution of his duties, unlawfully striking a fellow Soldier, and unlawfully striking another NCO.
13.  On 28 November 1972, court- martial charges were preferred against him for unlawfully assaulting several members of his unit.

14.  On 29 November 1972, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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.

15.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the VA, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.

16.  On 3 December 1972, his immediate commander recommended approval of his request for a discharge with an Undesirable Discharge Certificate.  

17.  On 3 and 6 December 1972 respectively, his intermediate and senior commanders recommended approval of his request for discharge with an Undesirable Discharge Certificate.  

18.  On 14 December 1972, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed the issuance of an Undesirable Discharge Certificate.  On 29 December 1972, he was discharged accordingly. 

19.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by court-martial (separation program number 246) under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, with an under other than honorable conditions characterization of service.  He completed 1 year, 5 months, and 29 days of net active service with 142 days of time lost due to being AWOL and in confinement.

20.  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.

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment included 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.  At the time, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

22.  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.

23.  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 evidence of record shows 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. 

2.  As such, he voluntarily requested a discharge to avoid trial by a court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  His record of service shows he was convicted by two special courts-martial of threatening an NCO, threatening his commanding officer, and setting fire to an inhabited dwelling.  In addition, he received NJP on three separate occasions for failing to report to his appointed place of duty, being AWOL, and for assaulting members of his unit.

4.  The applicant contends that his discharge should be upgraded because he was young and foolish at the time of his service.  Records show he was almost 20 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.
5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20120008500



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ABCMR Record of Proceedings (cont)                                         AR20120008500



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