BOARD DATE:	  25 February 2014

		DOCKET NUMBER:  AR20130011166 


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 under conditions other than honorable discharge.

2.  The applicant states he believes his youth was a major factor in his conduct.  He would like to have continued his service so that he could have corrected his mistakes.  He was young and irresponsible.  But, he has since become a better person and would like to have his record reflect it.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 20 April 1973.  At the time of his enlistment, he was 20 years and 6 months of age.  He completed training and was awarded military occupational specialty 11B (light weapons infantryman).  He was promoted to pay grade E-4 on 15 September 1974.  He served in Germany from 24 July 1974 through 9 April 1977.

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on/for:

* 1 May 1975 – for willfully disobeying a lawful order from his noncommissioned officer on 30 April 1975
* 19 June 1975 – for being absent without leave (AWOL) from 21 May to 10 June 1975 and from 12 to 17 June 1975

4.  He was reduced to pay grade E-1 on 19 June 1975.

5.  On 31 July 1975, court-martial charges were preferred against him.

6.  His record is void of the complete facts and circumstances surrounding his discharge; however, his record contains a DD Form 214 which shows he was discharged on 6 September 1975, under the provisions of Army Regulation    635-200 (Personnel Separation, Enlisted Separations), chapter 10, and he was issued an Undesirable Discharge Certificate.  His service was characterized as under conditions other than honorable.  He completed 2 years, 4 months, and 17 days of net active service.

7.  On 22 March 1979, the Army Discharge Review Board denied his request for an upgrade of his discharge.

8.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a 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 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  His record is void of the facts and circumstances surrounding his discharge.  However, the evidence of record shows he was 20 years and 6 months of age at the time of his enlistment.  He was 22 years of age when he was punished (twice) under the provisions of Article 15 and the same year court-martial charges were preferred against him.  There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  

2.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provided no information that would indicate the contrary.  

3.  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.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

4.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting the applicant the 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 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)                                         AR20130011166



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ABCMR Record of Proceedings (cont)                                         AR20130011166



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