IN THE CASE OF:	  

		BOARD DATE:	  7 November 2013

		DOCKET NUMBER:  AR20130004882 


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 his record of being absent without leave/unauthorized absence indicates only minor or isolated offenses.  His ability to serve was impaired by his youth and immaturity.  His discharge was based on many offenses which were mostly minor.

3.  The applicant provides no additional evidence.

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.  He enlisted in the Regular Army in pay grade E-1 on 22 December 1972.  At the time of enlistment, he was 18 years and 1 month of age.  He did not complete advanced individual training for award of a military occupational specialty.

3.  On 12 March 1973, a DD Form 458 (Charge Sheet) was prepared by the Commander, Company F, 3rd Battalion, First Combat Training Brigade, Fort Polk.  He was charged with one specification each as follows:

* 8 March 1973 – disobeying a lawful order from his superior noncommissioned officer (NCO) to report to duty
* 8 March 1973 – wrongfully communicating a threat to a Soldier to injure him by physical violence
* 8 March 1973 – being drunk and disorderly in the barracks
* 9 March 1973 – disobeying a lawful order to keep valuables secured in the bottom of his foot locker
* 10 March 1973 – being disrespectful in language toward his superior NCO
* 10 March 1973 – breaking restriction
* 11 March 1973 – disobeying a lawful order not to gamble in the barracks
* 11 March 1973 – stealing currency of a value of about $20.00, the property of another Soldier

4.  On 13 March 1973, he underwent a mental status evaluation.  His behavior was found to be normal.  He was found to be fully alert and fully oriented.  He had a depressed mood.  His thinking process was clear and his thought content was normal.  The examining physician believed the applicant's probable effectiveness of further rehabilitation was poor.  He determined the applicant was mentally responsible, able to distinguish right from wrong, and had the mental capacity to participate in board proceedings.

5.  On 20 March 1973, he acknowledged receipt of a fact sheet which provided information for applying to the Army Discharge Review Board (ADRB) and ABCMR for a change of a less than honorable discharge.

6.  On 6 April 1973, after consulting with 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.  In doing so, he acknowledged he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and he could be ineligible for many or all benefits administered by the Veteran's Administration.  He waived his rights and elected not to submit a statement in his own behalf.

7.  On 6 April 1973, the applicant's immediate commander recommended his elimination from the service with an undesirable discharge.  The commander stated that the applicant had been charged with numerous offenses of a very serious nature.  From his review of the file, he found the applicant had no potential for rehabilitation and that minimal rehabilitation effort could be expected from any kind of punishment.

8.  On 11 April 1973, the separation authority approved the applicant's request for discharge for the good of the service and directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.

9.  He was discharged accordingly in pay grade E-1 on 16 April 1973.  His service was characterized as under conditions other than honorable and he was issued an Undesirable Discharge Certificate.  He completed 3 months and 25 days of net active service with no lost time.

10.  There is no evidence he applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

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

	a.  Chapter 10 provides that a member who 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 at any time after charges are preferred.  An undesirable discharge was normally considered appropriate at the time the applicant was discharged.

	b.  Paragraph 3-7 provides that an honorable discharge is a separation with honor.  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 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 evidence of record shows the applicant enlisted in the Regular Army on 22 December 1972.  He was subsequently charged with numerous offenses of a very serious nature between 8 and 11 March 1973.  His commander stated the applicant had no potential for rehabilitation and that minimal rehabilitive effort could be expected from any kind of punishment.

2.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He also acknowledged he understood he could be issued an undesirable discharge.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.

3.  His contention that his youth and immaturity impacted his ability to serve successfully is without merit.  He was 18 years of age when he enlisted in the Regular Army and almost 19 years of age at the time of the offenses.  There is no evidence that he was any less mature than other Soldiers of the same age who served successfully and completed their military service obligations.

4.  His contentions have been carefully considered; however, he was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharge actions processed under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

5.  He has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting an honorable or a general discharge.

6.  It appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

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)                                         AR20130004882



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130004882



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1