IN THE CASE OF:	  

		BOARD DATE:  1 August 2013

		DOCKET NUMBER:  AR20120022325 


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 discharge to general under honorable conditions.

2.  The applicant states when he was in the Army he was young and knew nothing and alcohol was also a factor. 

3.  The applicant provides a statement of support from his mother, a letter of support from a minister, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

The listed counsel provides no additional statements or supporting documentation.

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.  On 28 January 1977, the applicant enlisted in the Regular Army at the age of 18 years, 2 months, and 3 days.  He completed training and progressed to pay grade E-3.

3.  At a 4 October 1979 mental status evaluation the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

4.  On 9 October 1979, court-martial charges were preferred against him for being absent without leave (AWOL) from 15 to 23 March 1978, 24 to 25 June 1978, 6 July 1978 to 11 April 1979, and 14 April to 1 October 1979.

5.  The applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He stated he understood the charges against him and admitted he was guilty of at least one offense for which a punitive discharge was authorized.  He acknowledged he understood he could receive a discharge under other than honorable conditions and an under other than honorable conditions discharge.  He indicated that he understood he could be deprived of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Veterans Administration.  He also acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge.

6.  The chain of command recommended approval of the applicant's request for discharge and the Staff Judge Advocate found the case legally sufficient.  The separation authority approved the request and directed the issuance of a discharge under other than honorable conditions.

7.  On 13 November 1979, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He had 1 year, 
3 months, and 10 days of creditable active service and approximately 500 days lost time.

8.  There is no indication the applicant ever applied to the Army Discharge Review Board to review his discharge. 



9.  In support of this application:

	a.  The applicant's mother wrote that she was against his enlistment because  he hadn't finished high school, but she was proud of him anyway.  He was immature and did foolish thing like staying away too long.  When he grew up he came to regret his actions.  He now realizes the meaning and importance of freedom for himself and other Americans.  He had a bad accident in July 2007 and has some permanent brain injuries.  She tries to take care of him.

	b.  A minister of International White Eagle Ministries writes that she has known the applicant for many years.  As he has gotten older he has regretted the actions that led to his leaving the Army.  He changed his life and raised a family of four girls, now grown.  He was injured in a car accident and needs assistance.  He has only his mother to care for him but she cannot give him 24-hour care.

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

	a.  Chapter 10 provides 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, an under other than honorable conditions discharge is normally considered appropriate.

	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 was 18 years old and qualified for enlistment.  His completion of training and advancement to pay grade E-3 demonstrates that he was not too immature to serve honorably.  
2.  His request for discharge under the provisions of Army Regulation 635-200, chapter 10, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid a trial by court-martial and the punitive discharge that he might have received.

3.  The administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors.

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  His current situation is unfortunate, but it has nothing to do with his period of active duty service.

6.    The applicant has submitted no evidence or convincing argument in support of his claim that he couldn't adjust to the military.  There is no basis for upgrading the 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)                                         AR20120022325





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ABCMR Record of Proceedings (cont)                                         AR20120022325



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