IN THE CASE OF:    

		BOARD DATE:  18 November 2014	  

		DOCKET NUMBER:  AR20140004442 


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.

2.  The applicant states:

* he was 17 years old and very young
* he has matured over time into a respectable adult
* he served 3 years and 3 months
* he is being evaluated for Agent Orange exposure and would like to have his discharge upgraded

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 17 August 1952.  He enlisted in the Regular Army at 17 years of age on 28 November 1969 for a period of 3 years.  He completed his training and was awarded military occupational specialty 62E (Tractor Crawl Operator).  On 27 August 1970, he was honorably discharged for immediate reenlistment.  He reenlisted on 28 August 1970 for a period of 3 years.  He served in Vietnam from 21 October 1970 to 3 October 1971.

3.  On 20 July 1972, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 19 June 1972 to 5 July 1972.

4.  On 21 September 1972, NJP was imposed against him for absenting himself from his appointed place of duty and being AWOL from 1 September 1972 to 20 September 1972.

5.  On 10 November 1972, a bar to reenlistment was imposed against him.

6.  His records are void of the specific facts and circumstances surrounding his discharge action.  However, his discharge orders and DD Form 214 show he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 31 May 1973 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, separation program number 246 (discharge for the good of the service).  He completed 3 years, 6 months, and 25 days of total creditable active service and accrued 68 days of lost time.

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

8.  Army Regulation 635-200 sets forth 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, the 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 would normally be furnished to an individual who was discharged for the good of the service.  Chapter 10 of the version currently in effect is essentially unchanged.

	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's statement that he was 17 years old and very young was noted; however, age alone is not a sufficiently mitigating factor.  Although he was 17 years old when he enlisted, he successfully completed his training and subsequently reenlisted.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their terms of military service.

2.  His records are void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.



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)                                         AR20140004442



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ABCMR Record of Proceedings (cont)                                         AR20140004442



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