IN THE CASE OF:	  

		BOARD DATE:	  17 December 2013

		DOCKET NUMBER:  AR20130007666 


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 under other than honorable conditions discharge.

2.  The applicant states the character of service of his discharge was appropriate at the time; however, he believes he is no longer the young man his DD Form 214 (Report of Separation from Active Duty) personifies.  He has given his all to no longer act in an irrational way and has become a productive member of society.  He has learned from the mistakes of his youth, and in his capacity as a minister he teaches young people so they may learn from his mistakes.

3.  The applicant provides five letters in support of his application.

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 enlisted in the Regular Army on 24 January 1974 at the age of       20 years, 8 months, and 17 days.  His record shows he completed basic combat  and advanced individual training and was awarded military occupational specialty 13B (Field Artillery Crewman).  

3.  On 14 February 1975, court-martial charges were preferred against the applicant for:

a. Unlawfully striking another Soldier in the mouth with his fist; and 

b. Being absent without leave (AWOL) for the period 18 to 26 November 
1974, 16 December 1974 to 3 January 1975, and 9 January to 4 February 1975.

4.  On 14 February 1975, the convening authority referred the charges for trial by a special court-martial.

5.  On 18 February 1975, the applicant 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 Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested 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.

6.  In his request for discharge, the applicant indicated he understood that by requesting a discharge he was admitting guilt to the charge against him, or to 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 laws.  He elected to submit a statement in his own behalf and stated the reason for his request was that he felt the military way of life was disadvantageous to his ultimate goal in life and he wanted to get out.

7.  On 19 February 1975, he submitted a request to withdraw his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  His chain of command summarily recommended disapproval of his request.  His brigade commander further stated it was his firm conviction that justice could best be served for all concerned with approval of the applicant's initial request.

8.  On 7 March 1975, the separation authority disapproved the applicant's request to withdraw his request for discharge for the good of the service and simultaneously approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 18 March 1975, the applicant was discharged accordingly.  He completed 1 year and 1 day of total active service with 58 days of lost time.
   
9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  The applicant provides five third-party letters in support of his request.  These individuals attest to his good character and excellent post-service conduct.

11.  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 under other than honorable conditions is normally considered appropriate.  At the time, an undesirable discharge was normally issued.

12.  Army Regulation 635-200, 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.

13.  Army Regulation 635-200, 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 contention that his discharge should be upgraded was carefully considered and it was determined there is insufficient evidence to support his request.

2.  The applicant's record shows he was charged with unlawfully striking a Soldier and for being AWOL on three separate occasions, offenses 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.  

3.  Evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence 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.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  The applicant was over 20 years of age at the time of his offense.  There is no evidence indicating the applicant was less mature than other Soldiers of the same age who successfully completed their military service.

5.  Notwithstanding the supporting statements provided by the applicant, post-service conduct alone is not normally a basis for upgrading a discharge.

6.  The applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge to either 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 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)                                         AR20130007666





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ABCMR Record of Proceedings (cont)                                         AR20130007666



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