BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20140000918 


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 (UD) to an honorable discharge.

2.  The applicant states, in effect, he does not feel he had proper legal representation.  In 1973, at the end of the war, President Nixon offered to over-turn discharges of this nature.  He believes his discharge should be upgraded in light of his service, his age at the time, the passage of time (after 40 years), and due to bad legal advice.  He believed his discharge should have been fixed a long time ago, because he served for 2 years, 5 months, and 10 days.

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.
2.  The applicant enlisted in the Regular Army on 30 October 1970.  At the time of his enlistment, he was 17 years and 7 months of age.  He served in military occupational specialty 63B (wheeled vehicle repairman).  

3.  On 29 June 1971, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for damaging government property.  

4.  He was promoted to pay grade E-4 on 26 November 1971.  

5.  On 8 September 1972, he again accepted NJP under Article 15 for failing to obey a lawful order.

6.  He served in Germany from 29 January 1972 through 7 April 1973.  

7.  An Army Evaluation Task Force Form 133 (Request for Discharge Under the Provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Separations) shows the following charges were pending against the applicant:

* possession of hashish
* disobedience of an order from a commissioned officer (twice)
* dereliction of his duties and violation of a general order
* being absent without leave by leaving his guard post

8.  On 19 March 1973, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial for charges.  He acknowledged he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate and the result of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.    

9.  On 22 March 1973, the applicant's company commander recommended approval of the applicant's request and the issuance of a UD because of the applicant's pending court-martial charges and his past performance.  The company commander stated that he had counseled the applicant over the past
8 months concerning his conduct and lackluster duty performance.  The applicant's response to the counseling had been minimal and was typified by an apparent attitude of doing only enough to get by and no more.  



10.  On 22 March 1973, the applicant's battalion commander recommended approval of the applicant's request and the issuance of a UD.  The battalion commander stated the applicant was extremely immature and defiant.  The applicant had been identified as a drug user by his own admission and had demonstrated that he also indulged in alcohol to excess and became belligerent. The applicant's nonchalant attitude toward duty and authority and his refusal to accept responsibility for his own future had an adverse effect on impressionable young men in the unit.  He did not feel that society or the Army would benefit from imprisonment of the applicant.

11.  On 27 March 1973, the Commander, Legal Service Center, recommended approval of the applicant's request and issuance of a UD Certificate.

12.  On 3 April 1973, the separation authority approved the applicant’s request and directed the issuance of a UD and reduction to pay grade E-1.

13.  He was discharged accordingly on 9 April 1973.  He was credited with completing 2 years, 5 months, and 10 days of net active service.  He was issued an Undesirable Discharge Certificate.

14.  There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulations 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.  A UD 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.  The applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He acknowledged the reason for his discharge and that he could be furnished an Undesirable Discharge Certificate.  He waived his rights and elected not to submit a statement in his own behalf.    

2.  At the time of his enlistment, he was 17 years and 7 months of age.  However, there is no evidence he was any less mature than other Soldiers of the same age or of a younger age who served successfully and completed their term of service. The applicant's company commander stated the applicant's response to the counseling had been minimal and was typified by an apparent attitude of doing only enough to get by and no more.  

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 a fully honorable discharge.

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations in effect at the time and the current version, with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his discharge.

5.  Additionally, the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge due to the passage of time.








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)                                         AR20140000918



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ABCMR Record of Proceedings (cont)                                         AR20140000918



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