IN THE CASE OF: 

		BOARD DATE:	    6 December 2012

		DOCKET NUMBER:  AR20120010260 


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:

* he was young and had no one to help and guide him
* he had 7 months left on his enlistment
* he desires an upgrade for entitlement to Department of Veterans Affairs (VA) benefits

3.  The applicant provides:

* DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States), dated May 2012
* DD Form 214 (Report of Separation from Active Duty)

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 November 1973 at the age of 17 years, 4 months, and 6 days.  He completed training and he was awarded military occupational specialty 12A (Pioneer).  The highest rank/grade he attained while on active duty was private (PV2)/E-2.

3.  Records show the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 26 July 1974, for being disobeying a lawful order from a superior noncommissioned officer (NCO) and being disrespectful in language toward a superior NCO, both offenses on 12 July 1974
* 20 August 1974, for failing to go at the time prescribed to his appointed place of duty on 6 August 1974; disobeying a lawful order from an NCO on 23 July 1974 and 30 July 1974; communicating a threat to a senior specialist on 31 July 1974; and being disrespectful in language toward a senior specialist on 31 July 1974

4.  An Army Europe (AE) Form 1107 (Bar to Reenlistment ), dated 11 September 1974, shows the applicant's commander recommended his bar from reenlistment in the U.S. Army due to receipt of NJP on two occasions, his frequent difficulties with his fellow Soldiers and chain of command, and substandard personal appearance.   The applicant refused to acknowledge receipt of the commander's recommendation, acknowledge he had been counseled and advised of the basis for the action, or indicate whether or not he desired to submit a statement in his own behalf.  The bar to reenlistment was subsequently approved by the appropriate authority on 7 October 1974.

5.  A DD Form 458 (Charge Sheet), dated 22 October 1974, shows the applicant was charged with:

* being disrespectful in language toward a superior NCO on 7 October 1974
* two specifications of assaulting the same NCO on 7 October 1974
* communicating a threat to an NCO on 7 October 1974
* destroying Government property on 7 October 1974
* stealing $300.00 from another Soldier on 30 August 1974


6.  On 15 November 1974, following counseling, the applicant submitted a voluntary 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, the applicant acknowledged he understood by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged he understood that if his request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  On 6 December 1974, the separation authority, a major general, approved the applicant's request.  He directed the applicant be reduced to the lowest enlisted grade and furnished an Undesirable Discharge Certificate.

8.  On 14 January 1975, the applicant was discharged accordingly.  His DD Form 214 shows he completed 1 year, 2 months, and 3 days of total active service.

9.  On 14 February 1977 and again on 19 October 1981, after careful consideration of the applicant's military records and all other available evidence, the Army Discharge Review Board determined he was properly discharged and denied his request for a change in the type and nature of his discharge.

10.  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 request for an upgrade of his under conditions other than honorable discharge was carefully considered.

2.  The applicant's record shows he was charged with the commission of offenses 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.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  His record shows he was 17 years, 4 months, and 6 days of age when he enlisted and he was over 18 years of age at the time of his first NJP action.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veteran’s benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for benefits should be addressed to the VA.

5.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20120010260



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ABCMR Record of Proceedings (cont)                                         AR20120010260



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