IN THE CASE OF:	  

		BOARD DATE:	  14 November 2013

		DOCKET NUMBER:  AR20130004818 


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 under other than honorable conditions (UOTHC) discharge to a general discharge.

2.  The applicant states, in effect, that he was only 17 years of age with a wife and child when he entered the Army.  He was a good Soldier and was promoted quickly.  His misconduct was the result of his new commander and him not seeing eye-to-eye.  He would like the opportunity to be a veteran member of the American Legion and he regrets the actions that led to his discharge.

3.  The applicant provides a self-authored statement and his DD Form 214 (Report of Separation 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.  On 29 September 1972, the applicant enlisted in the Regular Army at the approximate age of 17 years and 5 months.  He completed his initial training and he was awarded military occupational specialty 13B (Field Artillery Basic).  The highest rank/grade he attained was specialist (SPC)/E-4.

3.  The records show he accepted nonjudicial punishment (NJP) under 
Article 15, Uniform Code of Military Justice (UCMJ) on two separate occasions for:

* absenting himself from his place of duty on 21 October 1973 
* failing to obey a lawful order on 7 June 1974

4.  His DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave from 28 June 1974 to 23 December 1974.  

5.  On 31 December 1974, court-martial charges were preferred against him for the above-mentioned period of AWOL.

6.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for 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.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive a UOTHC discharge which would deprive him of many or all of his 
benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

7.  In his request for discharge, he indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

8.  On 8 January 1975, the separation authority approved his request for discharge and directed that he be discharged UOTHC and reduced to the lowest grade.

9.  On 16 January1975, he was discharged accordingly.  He completed a total of 1 year, 9 months, and 22 days of creditable active military service and accrued a total of 178 days of time lost.
10.  On 24 January 1977, the Army Discharge Review Board (ADRB) determined that he was properly discharged and denied the applicant's request for upgrade of his discharge.

11.  The applicant provided a self-authored statement in which he contends that he was only 17 years of age with a wife and child when he entered the Army.  After completion of his initial training he was assigned to Fort Riley, KS, and he started attending high school.  He was promoted quickly and only began having problems when a new company commander arrived at the unit.  Before the arrival of the new commander, he had been exempt from standing in formation, pulling guard duty, charge of quarters duty, and inspections because he was attending school.  However, on one occasion he returned to his room after an inspection to find his room trashed.  He tried unsuccessfully to explain that he had been exempt from the inspection by his first sergeant.  He was so upset that he packed up his belongings and returned to Maine.  He regrets his actions.  After his discharge, he was married and divorced four times, had three more children, and went to several rehabilitations.  He is clean and sober now and a former member of the American Legion.  He cooks and donates a lot of time to an American Legion post.  He would like the opportunity to become a veteran member.

12.  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, a discharge UOTHC is normally considered appropriate.

	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 requests his discharge be upgraded.

2.  His age at the time of his enlistment was noted.  However, many Soldiers enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, his age at the time cannot be used as a reason to change a properly-issued discharge.

3.  The applicant further contends he was discharged because he and his company commander did not see eye to eye.  The evidence shows a pattern of misconduct to include acceptance of NJP on two occasions and 178 days of lost time.  This misconduct renders his service unsatisfactory; therefore, he is not entitled to a general under honorable conditions discharge.

4.  His records show he was charged with the commission of an offense under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 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.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. 

5.  In view of the above, his request should be denied.

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)                                         AR20130004818





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ABCMR Record of Proceedings (cont)                                         AR20130004818



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