IN THE CASE OF:	  

		BOARD DATE:  30 July 2013

		DOCKET NUMBER:  AR20130000349 


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 an upgrade of his undesirable discharge. 

2.  The applicant states:

* he was charged with conspiracy with intent but he was the only one charged
* he was only 19 years of age with only 18 months time in service; he was also married and he had an infant son
* his commanding officer dismissed him from explosive ordnance disposal (EOD) training because of a bad attitude; he was processed and chaptered out of the military in 5 working days
* he had multiple awards and decorations and his service record speaks for itself
* he has been, in effect, a model citizen since he was discharged

3.  The applicant provides nearly 20 character reference letters and/or letters of support. 

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 was born on XX April 1954 and he enlisted in the Regular Army at 18 years of age on 28 June 1972.  He held military occupational specialties 63B (Wheel Vehicle Mechanic) and 11C (Infantry Indirect Fire Crewmember). 

3.  He also completed airborne training; Phase I of EOD training; and the Nuclear, Biological, and Chemical Defense course.  He served in Korea from 5 February 1974 to 20 March 1975 and from 27 June 1975 to on or about 31 August 1976.  He was honorably discharged on 29 April 1975 for the purpose of immediate reenlistment.  His DD Form 214 (Report of Separation from Active Duty) shows he was awarded or authorized the:

* National Defense Service Medal
* Good Conduct Medal
* Parachutist Badge
* Expert Infantryman Badge
* Armed Forces Expeditionary Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar

4.  He reenlisted in the RA at age 21 on 30 April 1975.  He attained the rank/grade of sergeant (SGT)/E-5. 

5.  On 29 July 1976, court-martial charges were preferred against him for violating Articles 81 and 92 of the Uniform Code of Military Justice (UCMJ).  He was charged with:

* four specifications of conspiring with other Soldiers to wrongfully use customs by transporting equipment into Korea for the purpose of selling it for profit
* one specification of violating a general regulation by wrongfully using customs regarding transportation of goods
* one specification of violating a general regulation by wrongfully selling property imported into Korea 

6.  On 2 August 1976, his battalion commander recommended trial by a special court-martial empowered to adjudge a bad conduct discharge. 
7.  On 16 August 1976, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a 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.   In his request for discharge he acknowledged that:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances and that he had no desire to perform further service
* he understood that 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 discharge or a discharge under other honorable conditions
* he understood that if the discharge 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 Veterans Administration
* he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws

8.  On 16 and 18 August 1976, his immediate, intermediate, and senior commanders recommended approval of the discharge with the issuance of an Undesirable Discharge Certificate. 

9.  On 20 August 1976, consistent with the chain of command's recommendations, the separation authority approved the applicant's request for voluntary discharge for the good of the service - in lieu of trial by a court-martial in accordance with Army Regulation 635-200, chapter 10, and directed that he be reduced to the lowest enlisted grade and the issuance of an Undesirable Discharge Certificate.  

10.  On 1 September 1976, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service - in lieu of trial by a court-martial with an Undesirable Discharge Certificate.  This form further confirms he completed 1 year, 4 months, and 2 days of active service, during this period of service.

11.  On 4 August 1986, the Army Discharge Review Board (ADRB) reviewed his discharge and determined he was properly and equitably discharged.  Accordingly, the ADRB denied his petition for an upgrade of his discharge. 

12.  He submitted multiple letters of support and/or character reference letters, from various friends, relatives, and military and/or civilian professionals.  The authors described him as:

* an honorable man with a strong character
* a respected leader and community/church member
* an outstanding citizen and veteran
* a mentor, role model, and a devout family man
* a moral and ethical individual
* a dedicated individual; trustworthy and honest

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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 undesirable discharge was considered appropriate at the time.

	a.  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.

	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's request that his undesirable discharge be upgraded was carefully considered; however, there is insufficient evidence to support his request.

2.  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.  The applicant 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.  The applicant was 18 years of age at the time of his enlistment and 21 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

4.  His post-service community/church standing as well as the multiple letters of support he submitted were noted; however, they are not sufficiently mitigating to reverse his voluntary request for discharge in lieu of a court-martial and the resultant character of service.  

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to either 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)                                         AR20130000349



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ABCMR Record of Proceedings (cont)                                         AR20130000349



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