IN THE CASE OF: 

		BOARD DATE:	    22 April 2014

		DOCKET NUMBER:  AR20130015082 


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.

2.  The applicant states that he was a young Soldier on the fast track and in line for promotion to E-4 after 15 months of active duty service.  The discharge offered to him by his superiors was unjust and accepted by him as a young teenage Soldier with no guidance.  Had he received guidance, he would have never signed a discharge of this nature.  He only recently discovered the severity of the discharge when applying for Department of Veterans Affairs benefits.  He has reared three children to be productive citizens.  He is a long-standing church member and belongs to the Salvation Army.

3.  The applicant provides no additional evidence.

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 was born on 22 January 1959 and enlisted in the Regular Army on 4 May 1976 at the age of 17 years, 3 months, and 13 days.  The highest rank/grade he attained while serving on active duty was private first class/E-3.  However, at the time of his separation he held the rank/grade of private/E-1.

3.  The applicant's record contains the following documentation of his disciplinary history:

	a.  DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) which document his acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ on four occasions for the following offenses:

* willful disobedience of a commissioned officer
* four counts of failure to repair
* willful disobedience of a noncommissioned officer

	b.  A DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate), dated 13 September 1977, which shows his unit commander initiated action to impose a reenlistment bar against the applicant based upon his aforementioned disciplinary history.  The commander noted the applicant had been a consistent discipline problem, lacking in professionalism, reliability, and concept of responsibility.  He further lacks the motivation to meet Army standards of performance and behavior.  The bar to reenlistment was approved on 22 September 1977.

	c.  A DD Form 458 (Charge Sheet), dated 13 October 1977 shows court-martial charges were preferred against him for violating the UCMJ by committing seven specifications of willfully disobeying a lawful command from a superior commissioned officer.  His chain of command recommended that he be tried by Special Court-Martial authorized to adjudge a bad conduct discharge.

4.  On 29 November 1977, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge, he indicated he understood that by requesting discharge he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant acknowledged his right to submit statements in his own behalf, but declined his right to do so.

5.  The applicant's chain of command recommended approval of his request with an under other than honorable conditions discharge.  On 8 December 1977, the separation authority approved the applicant's discharge request and directed that he be discharged in the lowest enlisted grade under the provisions of Army Regulation 635-200, chapter 10 with an under other than honorable conditions discharge. 

6.  His DD Form 214 (Report of Separation from Active Duty) shows that on 22 December 1977 he was discharged accordingly.  He completed 1 year, 7 months, and 19 days of creditable active service.

7.  On 24 January 1980, the applicant was informed that the Army Discharge Review Board, after careful consideration of his military records and all other available evidence, had determined he was properly and equitably discharged and advised him that his request for a change in the type and nature of his discharge had been denied.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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, an Under Other than Honorable Conditions Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service at the time.

9.  Army Regulation 635-200, paragraph 3-7a, provides that 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.
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 contention that his record should be corrected by upgrading his under conditions other than honorable discharge was carefully considered and determined to lack merit.

2.  The fact that the applicant was 17 and 18 years of age at the time he committed his offenses is duly noted.  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.  Additionally, his post-service achievements were considered.  However, post-service achievements alone are not a basis for upgrading a discharge.  

3.  The evidence clearly shows he was a substandard Soldier who had a record of numerous disciplinary infractions and a failure to respond to the rehabilitative efforts exerted by his chain of command.

4.  His record shows he was charged with the commission of numerous offenses punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10 to avoid a trial by court-martial which may have resulted in a felony conviction.

5.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  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.

6.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment or employment benefits.

7.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20130015082





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130015082



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1