BOARD DATE:	  27 August 2013

		DOCKET NUMBER:  AR20130001758


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 discharge under conditions other than honorable to honorable.

2.  The applicant states:

* he enlisted in the Army at 16 years of age
* he was trying to escape from an abusive foster family situation and he was very immature
* he is now 49 years of age and happily married with four children
* he is a responsible member of society and he is responsible for his family's financial well being
* he would like to go to college to earn his bachelor's degree in business management so he can provide a better life for his family
* he sincerely regrets his actions as a young, immature boy in the Army
* he has a tremendous respect for all branches of the service
* he would be greatly saddened to think the action of his youth would be a stain on his otherwise exemplary life

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge 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.  Records show the applicant was born on 18 December 1962.

3.  On 19 August 1980 at the age of 17, he enlisted in the U.S. Army Reserve (USAR) and entered active duty for the purpose of initial entry training.

4.  On 4 December 1980, he was released from active duty at the conclusion of his initial entry training and he was awarded military occupational specialty (MOS) 51E (Carpentry and Masonry Specialist).

5.  On 10 July 1981 at the age of 18, he enlisted in the Regular Army.  He entered active duty at Fort Benning, GA, for the purpose of MOS training.  At the conclusion of training, he was awarded MOS 11B (Infantryman) and was reassigned to the 15th Replacement Detachment, 1st Armored Division, in Germany.

6.  On or about 22 October 1981, he was assigned to the 1st Battalion, 46th Infantry Regiment, 1st Armored Division, Ferris Barracks, Erlangen, Germany.

7.  On 1 February 1982, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for numerous instances of failing to obey a lawful order and using disrespectful language toward a superior noncommissioned officer.

8.  On 11 May 1982, court-martial charges were preferred against him for numerous specifications of multiple charges in violation of the UCMJ.

* four specifications of charge I for violating Article 86
* one specification of charge II for violating Article 91
* two specifications of charge III for violating Article 92
* one specification of charge IV for violating Article 128
* two specifications of charge V for violating Article 134
* four specifications of additional charge VI for violating Article 91

9.  On 19 May 1982, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under conditions other than honorable, and the procedures and rights available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

10.  He indicated he understood that by requesting discharge he was admitting guilt of the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

11.  On 27 May 1982, the separation authority approved his request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

12.  On 15 June 1982, he was discharged accordingly.  His DD Form 214 confirms he was discharged under conditions other than honorable in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.

13.  There is no indication to show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

	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.

	c.  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, a discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge under conditions other than honorable was carefully considered; however, there is insufficient evidence to support his request.

2.  His records show he was charged with the commission of numerous offenses punishable under the UCMJ with a punitive discharge.  

3.  The applicant contends he enlisted in the Army at 16 years of age.  He further contends he was young and immature at the time of his enlistment and his age was a mitigating factor in his later indiscretions.  The evidence of record shows he was 17 years of age when he enlisted in the USAR and 18 years of age when he enlisted in the Regular Army.  There is no evidence that indicates he 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 he has not provided sufficient evidence which shows his acts of indiscipline were the result of his age.

4.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.

5.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

6.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to 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 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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20130001758



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