BOARD DATE:	  10 June 2014

		DOCKET NUMBER:  AR20130016689 


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.

2.  The applicant states, in effect:

* his commander forced him to take the discharge without counsel
* he was young and immature and did not understand the consequences of his decision 

3.  The applicant provides:

* character reference letters
* criminal court index
* certificates
* DD Form 214 (Certificate of Release or Discharge 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 was born on 3 July 1960.  He enlisted in the Regular Army on 30 April 1979 for a period of 3 years.  He completed his training and he was awarded military occupational specialty 13B (cannon crewman).     

3.  On 30 October 1980, nonjudicial punishment (NJP) was imposed against him for failing to obey a lawful order and behaving with disrespect toward a commissioned officer.

4.  He attained the rank of specialist four on 1 April 1981.

5.  On 15 December 1981, he was convicted by a special court-martial of using disrespectful language and deportment toward a noncommissioned officer.  He was sentenced to be reduced to private first class and to be reprimanded.  On 
6 January 1982, the convening authority approved the sentence.

6.  On 17 December 1981, a bar to reenlistment was imposed against him.

7.  On 15 April 1982, charges were preferred against him for:

* assaulting a commissioned officer
* wrongfully removing from the possession of a commissioned officer a white powdery substance in order to prevent its seizure
* possessing marijuana
* transferring marijuana
* soliciting another Soldier to purchase marijuana

8.  Trial by special court-martial was recommended.

9.  On 15 April 1982, he consulted with counsel and requested 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.  He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an Under Other Than Honorable Discharge Certificate, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to make a statement in his own behalf.  

10.  On 21 April 1982, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of an under other than honorable conditions discharge.

11.  On 27 April 1982, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.  He completed 2 years, 11 months, and 28 days of creditable active service.

12.  In March 1984, the Army Discharge Review Board denied his request for an honorable discharge.

13.  He provides character reference letters from family members and his pastor who attest:

* the applicant is compassionate and religious
* he is an upstanding and active member of the church
* he has great character and is honest and hard working
* he is loyal and is deserving of an upgrade
* he is a dedicated loving father and grandfather
* he made a mistake when he was younger
* he is responsible and deserves a chance to right the wrong from his past

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

	a.  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, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

	c.  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 contends he was young and immature.  However, age is not a sufficiently mitigating factor.  He was almost 19 years of age when he enlisted and successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military term of service.

2.  Although he contends his commander forced him to take the discharge without counsel, the available evidence shows he consulted with counsel on 
15 April 1982 prior to voluntarily requesting discharge in lieu of trial by court-martial.

3.  The character reference letters submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

4.  His record of service included a bar to reenlistment, one NJP, one special court-martial conviction, and serious charges for which trial by special court-martial was recommended.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  His voluntary request for discharge for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so.

6.  The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.

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




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)                                         AR20130016689



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ABCMR Record of Proceedings (cont)                                         AR20130016689



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