IN THE CASE OF:	  

		BOARD DATE:	  14 November 2013

		DOCKET NUMBER:  AR20130006534 


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 that his undesirable discharge (UD) be upgraded to general.

2.  The applicant states he was 20 years of age and immature.  He was not aware of the seriousness and ramifications of his actions at the time.  He also had a myriad of family problems that included being newly married and having a newly born daughter with birth defects.  He knows he served his country with great pride during his first enlistment when he earned the Combat Infantryman Badge and service medals for his service in the Republic of Vietnam (RVN).

3.  The applicant provides copies of:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) effective 13 October 1969
* DD Form 214 effective 7 October 1970
* DD Form 215 (Correction to DD Form 214)
* DD Form 4 (Enlistment Record - Armed Forces of the United States), dated 27 June 1967
* DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ) (NJP) dated 16 September 1967
* DA Form 2627-1, dated 11 June 1969
* DD Form 4 (Enlistment Contract), dated 14 October 1969
* DA Form 20 (Enlisted Qualification Record)
* Security Officer Basic Training Course Certificate, dated 29 October 1976
* Training Board Certificate, 24-hour firearms training course, dated          30 September 1978
* Multi-Regional Criminal Justice Training and Education Project Certificate, dated 30 September 1978
* Detective Agency License, dated 31 July 1979
* Tests of General Educational Development, dated September and October 1982
* Illinois State Board of Education, High School Equivalency Certificate, dated 28 October 1982
* Résumé, Police Officer, undated
* Newspaper articles, undated, concerning the applicant's duties as a security officer
* Two pages showing copies of nine different permits/licenses issued to the applicant
* Birth Certificate for a person with a different first name and date of birth than that of the applicant
* Letter from the National Personnel Records Center to the applicant dated 20 April 2011
* Letter from the Veterans of Foreign Wars of the United States, dated      12 April 2012

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 27 June 1967, the applicant, at 17 years, 2 months, and 26 days of age, enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 16 September 1967, the applicant accepted NJP for being absent without leave for about 12 days.

4.  On 20 November 1968, the applicant was advanced to specialist four, pay grade E-4.

5.  On 11 June 1969, the applicant accepted NJP for sleeping at his guard post in the RVN.

6.  On 13 October 1969, the applicant was honorably discharged for the purpose of immediately reenlisting on 14 October 1969.

7.  On 19 June 1970, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, AWOL, during the period from on or about 17 November 1969 to on or about 11 June 1970 (approximately 204 days).

8.  On 22 July 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.

9.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge 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, and that he could receive a UD which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received a UD.  In a 3-page statement he says that he was having family problems just like everyone else.  He loves his wife and daughter and needed to be home with them.  He said he wanted out of the service no matter what the cost.

10.  On 5 October 1970, the separation authority published orders directing the applicant's discharge and issuance of DD Form 258A (Undesirable Discharge Certificate).  On 7 October 1970, constructive Notice of Discharge was sent to the Commanding Officer, Special Processing Detachment, Fort Riley, KS, directing the applicant's discharge, who was at the time in an AWOL status.  He had completed a total of 2 years and 8 months of creditable active duty service and accrued 270 days of time lost.

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

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  At the time, a UD was normally given.

	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 (emphasis added), 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 applicant contends that his UD should be upgraded to general because he was young and immature, he was not aware of the seriousness and ramifications of his actions at the time, had a myriad of family problems, and he knows he served his country with great pride during his first enlistment.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's contention that he was young at the time is not sufficiently mitigating to warrant relief.  The applicant was 17 years of age, but he had satisfactorily completed training and had attained the rank of specialist four, pay grade E-4.  His satisfactory performance shows that he was neither too young nor immature to serve honorably.

4.  The applicant's contention that his family problems were the cause of his misconduct and lengthy periods of AWOL is not sufficiently convincing and is not adequately documented in the available evidence.
5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

6.  In view of the above, the applicant's 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)                                         AR20130006534





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ABCMR Record of Proceedings (cont)                                         AR20130006534



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