IN THE CASE OF:	   

		BOARD DATE:	  10 September 2013

		DOCKET NUMBER:  AR20130001259 


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 under other than honorable conditions discharge.

2.  The applicant states, in effect:

	a.  He believes the decision that was made regarding his discharge was unjust because it was irrational.  Due to the incident in Korea, several of his buddies were killed, and it had a great impact on his life.  He suffers from sleep disorder and he is taking medication for depression, diabetes, and other illnesses that he incurred during the battle in Korea.  The age factor also played a role on his behavior.

	b.  He served in Korea from 1976 to 1977 and he saw his buddies get killed during an ambush that affected him when he got back to Camp Casey.  He could not sleep, drink, or function correctly.  They were told to return to the Demilitarized Zone and he was still in shock.  Perhaps that contributed to the decision on his discharge.  

3.  The applicant provides:

* Multiple letters of support/character reference letters
* DD Form 214 (Report of Separation and Record of Service)
* Department of Veterans Affairs Patient Medication Information


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 30 December 1953.  He enlisted in the Regular Army on 18 November 1974 at almost 19 years of age and he held military occupational specialty 31M (Multichannel Communications Equipment Operator).

3.  He served in Korea from 18 July 1976 to 28 June 1977 and he attained the rank/grade of specialist four (SP4)/E-4.  He was awarded or authorized the National Defense Service Medal and the Parachutist Badge. 

4.  On 15 February 1977, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for violating a general regulation, on four separate occasions, by purchasing various controlled items, including liquor, coffee, and other goods. 

5.  The complete facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains:

	a.  A memorandum, dated 29 June 1977, addressed to the applicant from Headquarters, U.S. Army Transfer Point, Oakland, CA, informing him that he was being issued an under other than honorable conditions discharge from the U.S. Army.  He was advised that he could apply to the Army Discharge Review Board (ADRB) for a review of his discharge.  He acknowledged receipt of this letter with his signature. 

	b.  A DD Form 214 that shows he was discharged on 29 June 1977 under the provisions of chapter 10, Army Regulation 635-200, with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  He was assigned a separation program designator (SPD) code of JFS (Administrative discharge conduct triable by court-martial), He completed 2 years, 7 months, and 12 days of total active service.
6.  There is no indication he petitioned the ADRB for a review of his discharge within that board's 15-year statute of limitations. 

7.  He provides a listing of his medication information and multiple character reference letters and/or letters of support from various friends, family members, and others.  The authors describe him as:

* a mature and deep leader who has shown growth and development
* a church-going individual who fears God
* an active member of the community 
* a hard-working individual who has dedicated his time to his family and community
* an inspiration to all; a positive individual
* a dependable, kind-hearted, and helpful person

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

	a.  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 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 available record shows the applicant appears to have been 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.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. 

2.  Although his record is void of all of the specific facts and circumstances that led to his discharge, it contains a DD Form 214 that shows he was discharged on 29 June 1977 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of a court-martial.  In the absence of evidence to the contrary, it is presumed all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  Further, it is presumed his discharge accurately reflects his overall record of service. 

3.  The applicant does not provide evidence of the event that he states led to the death of his buddies.  Likewise, he does not provide the medical evidence that confirms this particular incident led to his misconduct which in turn led to his discharge.  He contends that the decision to discharge him was irrational but does not explain why he did not elect trial by a court-martial if he believed he was innocent.

4.  The record also shows he had accepted nonjudicial punishment in February 1977 for four instances of, in effect, blackmarketing.  It is not known if February 1977 was before or after the ambush he contends he was involved in.  However, if it was before the ambush it is an indication that he had a propensity for misconduct.  If it was after, contrary to his contention that after the ambush he could not function correctly blackmarketing is an offense that requires some thoughtful planning.  

5.  As the applicant was almost 19 years old when he enlisted and 23 years old at the time of his misconduct, age is not a mitigating factor.

6.  Based on his record of indiscipline his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  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)                                         AR20130001259



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ABCMR Record of Proceedings (cont)                                         AR20130001259



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