IN THE CASE OF:	  

		BOARD DATE:	  2 January 2014

		DOCKET NUMBER:  AR20130006781 


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 discharge under other than honorable conditions.

2.  The applicant states he was young at the time.  He had an accident wherein he took a young boy's life.  The Army did not help and he felt hurt.  He still feels hurt today.  He just wanted to go home.  He knows he made a mistake and he felt bad about it.  He still can't sleep at night, thinking about that little boy.  When he came home there was no one to talk to other than his mother.  What he did was wrong and he is ashamed.  He just needs help.

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.  The applicant's records show he was born in July 1952.  He enlisted in the Regular Army on 29 January 1971 at 18 years and 6 months of age.  He completed training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 9 December 1971, he accepted nonjudicial punishment (NJP) at Fort Riley, KS, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.

4.  He was honorably released from active duty in the rank/grade of specialist four (SP4)/E-4 on 30 October 1972.  He was transferred to the U.S. Army Reserve Control Group (Annual Training).

5.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period shows he was awarded or authorized the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

6.  He again enlisted in the Regular Army on 29 December 1972 at 20 years and 5 months of age.

7.  On 11 January 1972, he accepted NJP at Fort Riley, KS, under the provisions of Article 15 of the UCMJ for disobeying a lawful regulation.

8.  He was assigned to the 1st Battalion, 39th Infantry, Baumholder, Germany, on or about 3 July 1974.  However, his records show he was reported as absent without leave from 11 September to 5 November 1974.

9.  The complete facts and circumstances, including the court-martial charge sheet and separation packet, are not available for review with this case.  However, his records contains a duly-constituted DD Form 214 that shows he was discharged for the good of the service in lieu of trial by court-martial on 24 December 1974 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  His service was characterized as under conditions other than honorable and he was issued a DD Form 258A (Undesirable Discharge Certificate).  His DD Form 214 also shows he completed 1 year, 10 months, and 10 days of net active service during this period and he had 46 days of lost time.

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	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's records are void of the specific facts and circumstances surrounding his discharge action.  It appears that he was charged with the commission of offense(s) 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.

2.  In the absence of evidence to the contrary, government regularity must be presumed.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  Although the applicant was 18 years and 6 months of age upon his initial enlistment, he was 20 years and 5 months of age, he held the rank/grade of SP4/E-4, and he had prior service at the time he reenlisted.  In any case, there is insufficient evidence to show his age caused his discharge.

4.  Based on his available record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20130006781



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ABCMR Record of Proceedings (cont)                                         AR20130006781



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