BOARD DATE:	  20 November 2012

		DOCKET NUMBER:  AR20120009231 


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.

2.  The applicant states he was young and away from home, but he did his service.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Certificate of Eligibility for Loan Guaranty Benefits

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.  He was inducted into the Army of the United States on 9 December 1969 at age 20.  After a period of 3 days, he was discharged for the purpose of immediate enlistment in the Regular Army,  He enlisted in the Regular Army for a period of 3 years on 12 December 1969.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  He accepted nonjudicial punishment (NJP) on:

* 25 March 1970, for being absent without leave (AWOL) from 17-23 March 1970
* 19 June 1970, for willfully disobeying a lawful order from a commissioned officer

4.  On 25 June 1970, he was convicted by a summary court-martial of willfully disobeying a lawful order from a noncommissioned officer (NCO).

5.  On 12 August 1970, he was convicted by a summary court-martial of:

* failing to go to his appointed place of duty
* willfully disobeying a lawful order from an NCO

6.  On 2 February 1971, he was convicted by a special court-martial of being:

* AWOL from 28 August to 26 September 1970
* AWOL from 1 October 1970 to 7 January 1971

7.  He again accepted NJP on:

* 12 January 1972, for being AWOL from 31 December 1971 to 10 January 1972
* 11 April 1972, for two specifications of failing to have an overnight pass
* 19 June 1972, for being absent from his appointed place of duty

8.  On 20 February 1973, court-martial charges were preferred against the applicant for:

* being AWOL from 6-9 February 1973
* three specifications of failing to go to at the prescribed time to his appointed place of duty
* willfully disobeying a lawful order from a commissioned officer
* wrongfully having in his possession another's pass

9.  On 20 February 1973, he voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making his request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* making the request of his own free will
* not making a statement in his own behalf
* afforded the opportunity to speak with counsel prior to making his request
* advised he might be furnished an Undesirable Discharge Certificate

10.  He acknowledged he might expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* might be ineligible for many or all veterans' benefits
* might be deprived of his rights and benefits as a veteran under both Federal and State laws

11.  On 21 February 1973, his commander recommended approval of his request for discharge and recommended issuance of an Undesirable Discharge Certificate.

12.  On 21 February 1973, the appropriate authority approved his request for discharge for the good of the service, directed his reduction to the lowest enlisted grade, and directed issuance of an Undesirable Discharge Certificate.

13.  On 3 March 1973, he was discharged for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) and furnished an Undesirable Discharge Certificate.  He completed 2 years, 6 months, and 26 days of total active service that was characterized as under conditions other than honorable with 239 days of lost time.

14.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 16 November 1982, the ADRB reviewed and denied the applicant's request for an upgrade.  The ADRB determined the applicant's discharge was proper and equitable and properly characterized as under other than honorable conditions.

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

	a.  Chapter 10 states a member who is charged with 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 any time after charges have been preferred.  Although an honorable or general discharge is authorized, an Undesirable Discharge Certificate was normally furnished to an individual who was discharged for the good of the service at the time.

	b.  An honorable discharge was 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 clearly be inappropriate.

	c.  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 was 20 years of age at the time he was inducted and subsequently enlisted in the Regular Army.  Many Soldiers enlisted at a younger age and went on to complete their enlistments and receive honorable discharges.  Therefore, his age cannot be used as a reason to change a properly-issued discharge.

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

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The undesirable discharge he received accurately reflected his overall record of service at the time it was issued.

4.  Due to the 239 days of lost time he accrued, he did not complete the 3-year period for which he enlisted.  He received NJP on five occasions.  He was also convicted by two summary courts-martial and one special court-martial.  Therefore, his service was clearly unsatisfactory.

5.  In view of the above, there is an insufficient basis for upgrading his undesirable discharge to an honorable or 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)                                         AR20120009231



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ABCMR Record of Proceedings (cont)                                         AR20120009231



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