BOARD DATE: 	 19 December 2013 

		DOCKET NUMBER:  AR20130008435 


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 discharge under conditions other than honorable to a general discharge under honorable conditions.

2.  The applicant states:

* He was coerced into joining the Army to avoid jail
* He was too young and immature to understand the ramifications of joining the Army

3.  The applicant provides no additional documents. 

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 30 November 1972, at the age of 17.  He completed basic combat training.

3.  The applicant received non-judicial punishment under provisions of Article 15 of the Uniform Code of Military Justice, on 23 April 1973, for being absent without authority from his unit.

4.  On 9 July 1973, charges were preferred against the applicant for being absent without leave (AWOL) during the period 30 April 1973 through 3 July 1973.

5.  On 27 July 1973, after consulting with counsel, the applicant voluntarily submitted a request for 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.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life if such a discharge was issued to him.  With his request for discharge, the applicant also provided a letter explaining why he was requesting a discharge. 

6.  On 20 August 1973, the separation authority approved the applicant’s request for discharge and directed his discharge under other than honorable conditions.
He was accordingly discharged on 31 August 1973.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 6 months and 27 days of creditable active service with 64 days of lost time. 

7.  On 7 April 1982, the applicant applied to the Army Discharge Review Board for an upgrade of his discharge and it was denied.

8.  There is no evidence in the applicant’s records which shows arrests or convictions prior to his enlistment.

9.  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.

10.  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 request for an upgrade of his discharge under conditions other than honorable to a general discharge under honorable conditions was carefully considered; however, there is insufficient evidence to support his request. 

2.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 
635-200.  Discharges under this chapter are due to a voluntary request for discharge in lieu of trial by court-martial.  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.  Based on the applicant’s record of indiscipline which includes non-judicial punishment and 64 days of AWOL, he clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory. 

4.  There is no evidence, and the applicant did not provide evidence, that shows he was facing jail prior to his enlistment.

5.  Records show the applicant was only 17 years of age at the time of his
offenses.  However, there is no evidence that indicates the applicant was
any less mature than other Soldiers of the same age who successfully
completed military service.

6.  Based on the foregoing, there is insufficient evidence to grant the relief requested.




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)                                         AR20130008435





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ABCMR Record of Proceedings (cont)                                         AR20130008435



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