BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130010880 


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 other than honorable conditions to general under honorable conditions.

2.  The applicant states he was under the influence of alcohol and drugs.  He was arrested for being under the influence of alcohol and drugs and spent 8 1/2 years in prison.  He has no documentation about his alcohol or drug addictions, but all of this happened when he was between 17 and 18 years of age.

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), 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 11 November 1971.  At the time of his enlistment, he was 17 years of age.  He completed training and was awarded military occupational specialty 63F (recovery specialist).  He was advanced to pay grade E-2 on 10 February 1972.  He served in Germany from on or about 17 April 1972 through 8 August 1972.

3.  A DD Form 458 (Charge Sheet), dated 14 June 1972, issued by the Commander, 503d Administration Company, Frankfurt, Germany, shows the applicant was charged with one specification each of assaulting two Soldiers and a third Soldier executing his military police duties on or about 14 June 1972.  He was also charged with failing to go to his prescribed place of duty on or about 14 June 1972.

4.  In a statement, dated 14 June 1972, the applicant's company commander stated that two Soldiers were asked to talk to the applicant about being absent from work the morning of 14 June 1972.  The Soldiers returned and stated the applicant would not answer his door.  The Soldiers returned to the applicant's room and stated they saw the applicant sitting in his chair and he appeared to be sleeping.  They pushed his door lock off and entered the room out of concern.  At that time, the applicant jumped out of his chair with an open entrenching tool and started swinging it around, saying he would hit the two Soldiers.  The desk sergeant was called and a patrol was dispatched to attempt to get the applicant out of his room before he hurt someone.  He attached a DA Form 2823 (Witness Statement), dated 15 June 1972, from one of the Soldiers.

5.  On 27 June 1972 after consulting with counsel, the applicant requested 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 Separations), chapter 10.  He acknowledged he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate and the results of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

6.  In a memorandum, the Staff Judge Advocate stated the applicant's company, battalion, and brigade commanders recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.

7.  On 27 June 1972, the appropriate separation authority approved the applicant's request for discharge under the provisions of Army Regulation 
635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate and his reduction to pay grade E-1.

8.  A Standard Form 88 (Report of Medical Examination), dated 19 July 1972, shows he stated he was in good health and he was found qualified for separation.  This form does not mention any alcohol or drug problems.

9.  On 9 August 1972, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 8 months and 29 days of net active service with no lost time.  His service was characterized as under other than honorable conditions.

10.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he received "unsatisfactory" conduct and efficiency ratings from 29 January 1972 to 8 August 1972.

11.  There is no evidence in his records which shows he had an alcohol and/or drug addiction during his military service.

12.  On 26 September 1977, the Army Discharge Review Board denied his request for an upgrade of his discharge.

13.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.

	a.  Chapter 10, in effect at the time, provided that a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request discharge for the good the service in lieu of trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	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 evidence of record shows he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial upon receipt of charges.  He also acknowledged he could be furnished an undesirable discharge.  His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  As a result, he was discharged under other than honorable conditions on 9 August 1972.

2.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  His misconduct diminished the quality of his service below that meriting 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 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)                                         AR20130010880



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ABCMR Record of Proceedings (cont)                                         AR20130010880



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