IN THE CASE OF:  

		BOARD DATE: 1 April 2014  

		DOCKET NUMBER:  AR20130013819 


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 undesirable discharge to a general discharge.

2.  The applicant states that:

	a.  He was raised by his grandparents and he considered them as having  "Local Parentis" status.

	b.  He had a very difficult time in basic training.  He was small and not very strong.  He did his best but was often held out as an example of "what not to be."

	c.  While in advanced individual training he was informed that his grandfather was on his death bed.  Although his request for leave to go home was denied, he    took a plane on or about 31 January 1969 and went to see his grandfather.  

	d.  After seeing his grandfather he reported back to his base on or about 
3 February 1969.  He was unofficially put on permanent kitchen police (KP) and not allowed to go anywhere or do anything.  He was ostracized. 

	e.  In May 1969, his grandfather passed away and he was sent home on leave for 30 days.  He did not return to his base until he was arrested around October 1969.  He realizes he should have returned to his base but he just could not bring himself to go back because of how he had been treated. 

	f.  After his arrest he was brought to Fort Dix, New Jersey, for court-martial.  He was sentenced to the Fort Riley Correctional Training Facility.  During the trip to Fort Riley, he stopped at Fort Leavenworth, Kansas where he was knocked unconscious.  He doesn't remember how long he was at Fort Riley, but he does remember being attached to the 1st Infantry Division when the unit was coming back from Vietnam.

	g.  He was then transferred to Fort Eustis, Virginia.  He went on a weekend pass to see his mother and did not return.  The MP's picked him up and he was taken to the stockade at Fort Dix.  

	h.  While at Fort Dix, he was offered the opportunity to resign from the service with a general under honorable conditions discharge.  He turned down the offer.  He was robbed and beaten in his barracks and reported this to the officer of the day (OD).  He was given a weekend pass.  He was afraid and did not return from the pass.  

	i.  About a month later he received an undesirable discharge and his DD Form 214 in the mail.  

	j.  All this happened when he was 17 years old.  He has lived with the embarrassment and nightmare for over 40 years.  He has become a positive contributing member of society.  Based upon his past treatment and his unstable mental status at the time of his separation he requests an upgrade of his discharge.

3.  The applicant provides copies of:

* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)
* DD Form 214 (Armed Forces of the United States Reports of Transfer or Discharge) 
* five character reference letters
* 19 certificates reflecting his accomplishments since his discharge
* one page résumé

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 26 November 1968 at the age of 17 years and 2 days.  He did not complete training and was not awarded a military occupational specialty.

3.  His record shows he accepted nonjudical punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 5 February 1969 for being absent without leave (AWOL) from 1 February to 3 February 1969
* 18 April 1969 for missing bed check

4.  He was convicted by a special court-martial, in accordance with his plea, of two specifications of being AWOL, from 22 October 1969 to 6 January 1970 and from 17 July to 2 October 1969.

5.  On 20 January 1971, charges were preferred against the applicant for being AWOL from 1 June 1970 to 1 January 1971.

6.  A Standard Form (SF) 88 (Report of Medical Examination), dated 20 January 1971, shows the applicant was qualified for separation.

7.  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.

8.  The applicant's chain of command recommended approval of his voluntary request for discharge with the issuance of an Undesirable Discharge Certificate.  The separation authority approved the recommendation on 23 February 1971 and directed issuance of an Undesirable Discharge Certificate.

9.  He was discharged on 3 March 1971.  His DD Form 214 shows his service was characterized as Under Conditions Other Than Honorable.  Time lost is shown as 499 days.

10.  There is no available evidence showing he previously applied to the Army Discharge Review Board for an upgrade of his discharge.
 
11.  The applicant's service medical records are not available for review.

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Separations) provides the basic authority for the separation of enlisted personnel.

	a.  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 Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate was normally furnished to an individual who was discharged for the good of the service.

	b.  Paragraph 3-7b states 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 had an unstable mental status is not sufficiently mitigating to warrant relief.  The applicant was over 
19 years old when separated.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  There is no available medical evidence showing he suffered any mental problems during his active duty service.

2.  The applicant's character reference letters and the certificates he provided showing his accomplishments since his discharge were all reviewed; however, they are not sufficiently mitigating 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.

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)                                         AR20130013819



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