IN THE CASE OF:	  

		BOARD DATE:	  18 July 2013

		DOCKET NUMBER:  AR20120022184 


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 was extremely young
* he had drug problems
* the military knew he had a substance abuse problem, but refused to give him drug counseling or any help
* instead he was given bad legal advice and pressured into signing a chapter 10 discharge
* he was taken advantage of due to his young age
* the charges were a complete fabrication in order to justify the undesirable discharge
* there is no record that he was ever charged with or arrested for assault (special court-martial charge) 

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* Health record, dated 1973
* Army Discharge Review Board (ADRB) Brief, dated 24 May 1974 



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 1 May 1954.  He enlisted in the Regular Army on 
3 November 1972 for a period of 2 years.  He completed his training and was awarded military occupational specialty 11B (light weapons infantryman).  

3.  He provides a health record which shows his name showed up on a military police blotter for alcohol on 28 August 1973.

4.  On 27 September 1973, he was convicted by a special court-martial of resisting apprehension, aggravated assault by striking a Soldier with a wooden chair and his fists, assault, and breaking restriction.  He was sentenced to be confined for 30 days, forfeit $200.00 pay per month for 3 months, and to be reduced to E-1.  On 18 October 1973, the convening authority approved the sentence. 

5.  His ADRB Brief, dated 24 May 1974 states:

	a.  he had four nonjudicial punishments (NJPs).

	b.  charges were preferred against him for five specifications of being absent without leave (AWOL), two specifications of behaving with disrespect toward two commanding officers, disobeying two lawful commands, failing to obey a lawful order, violating a lawful general regulation, and assault.

6.  His record is void of the specific facts and circumstances surrounding his discharge.  However, his DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial on 1 February 1974 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He completed a total of 1 year, 2 months, and 
7 days days of creditable active service with 22 days of lost time.
7.  His ADRB proceedings state he was in drug rehabilitation from August 1973 to January 1974.

8.  On 29 May 1974, the ADRB denied his request for an honorable discharge.  On 27 February 1979, the ADRB denied his request for a discharge upgrade. 

9.  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 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 an individual who was discharged for the good of the Service.

	b.  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 contends he was extremely young.  However, age is not a sufficiently mitigating factor.  He was age 18 when he enlisted and he successfully completed 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.  His contention the military knew he had a substance abuse problem, but refused to give him drug counseling or any help was noted.  However, evidence shows he was in drug rehabilitation from August 1973 to January 1974.  





3.  It appears he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice 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.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20120022184





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ABCMR Record of Proceedings (cont)                                         AR20120022184



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