IN THE CASE OF:

		BOARD DATE: 9 January 2014

		DOCKET NUMBER:  AR20130008196 


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 undesirable discharge to an honorable discharge.

2.  The applicant states he was young and made several stupid mistakes.  He did not fully understand the consequences of his actions at the time.  He is asking for understanding and forgiveness for this matter. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records 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 30 July 1971.  He held military occupational specialty 76A (Supply Clerk).  His date of birth is 8 February 1954.

3.  On 30 June 1972, charges were preferred against the applicant for two specifications of being absent from his place of duty, four specifications of failing to obey a lawful general regulation, and one of failure to obey a lawful order.

4.  He consulted with counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he understood the elements of the charges against him and admitted he was guilty of at least one of the offenses which authorized a punitive discharge.  He also acknowledged he understood he might receive an undesirable discharge, which would deprive him of many or all Army benefits, and he might be ineligible for veterans' benefits administered by the Veterans Administration (VA).  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will.  He indicated he would not submit a statement on his own behalf.

5.  The applicant's chain of command recommended approval of his voluntary request for discharge with the issuance of an Undesirable Discharge Certificate.  The company and battalion commanders noted he had a prior summary court-martial conviction and had accepted four nonjudcial punishments (NJP) under the provisions of Article15, Uniform Code of Military Justice (UCMJ).  The separation authority approved the recommendation on 20 July 1972 and directed issuance of an Undesirable Discharge Certificate.

6.  He was discharged on 21 July 1972.  His DD Form 214 shows his service was characterized as Under Conditions Other Than Honorable. 

7.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

8.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.

	a.  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, type of discharge normally given under the provisions of this chapter, the loss of VA 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 an individual who was discharged for the good of the Service.  

	b.  Paragraph 3-7a states 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.

   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's contention that he was young and made several stupid mistakes at the time is not sufficiently mitigating to warrant relief.  The applicant was 18 years old when separated and had satisfactorily completed training.  His satisfactory performance demonstrates his capacity to serve.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

2.  The applicant has not provided any evidence or a sufficiently mitigating argument to warrant an upgrade of his discharge.

3.  His request for a chapter 10 discharge, even after appropriate and proper consultation with legal counsel, tends to show he wished to avoid the court-martial and the punitive discharge he might have received.  His service was appropriately characterized by the nature of his offenses and the circumstances of his separation and does not warrant an upgrade to honorable or general.







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)                                         AR20100027085



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ABCMR Record of Proceedings (cont)                                         AR20130008196



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