IN THE CASE OF:	  

		BOARD DATE:	  8 October 2014

		DOCKET NUMBER:  AR20140005481 


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 under other than honorable conditions discharge.

2.  The applicant states, in effect, he:

* was young and unaware of the consequences that could occur later in life
* has concerns pertaining to Agent Orange
* has health concerns

3.  The applicant does not provide any additional information or 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's record shows he enlisted in the Regular Army on 24 May 1971 at the age of 17.  His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 67N (UH-1 Helicopter Repairman).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  The available records indicate the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions:
 
* On 12 May 1972, for being absent without leave (AWOL) from 6 March   1972 through 4 April 1972
* On 23 November 1972, for failure to obey a lawful order and for failure   to report to his appointed place of duty

4.  Charges were preferred against the applicant on 14 August 1973 for being AWOL for the periods 7 March 1973 through 2 June 1973 and 11 June 1973 through 7 August 1973.
 
5.  The applicant consulted with counsel and 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 procedures and rights available to him.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

6.  In his request for discharge, the applicant indicated he understood that by requesting discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  On 23 August 1973, the separation authority approved the applicant's request for discharge and directed an Undesirable Discharge Certificate be issued.

8.  On 12 September 1973, the applicant was discharged accordingly.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period of service shows he completed 1 year, 10 months, and 28 days of total creditable active military service, with 144 days of lost time due to being AWOL.

9.  On 23 March 1977, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.
10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-7 of the regulation in effect at the time states that the type of discharge and character of service will be determined solely by the military record during the current enlistment or period of service, plus any extensions thereof from which the Soldier is being separated.

	b.  Paragraph 3-7a states 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 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. 

	d.  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 is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge under other than honorable conditions should be upgraded was carefully considered and found to be without merit.

2.  His record includes acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ on two occasions.

3.  His record also shows he was charged with the commission of 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.

4.  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.

5.  The applicant contends that his discharge should be upgraded because he was young and unaware of the consequences that could occur later in life.

6.  Records show the applicant was only 18 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was nay less mature than other Soldiers of the same age who successfully completed military service.

7.  The applicant also contends that his discharge should be upgraded due to his current health concerns.

8.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for medical benefits.

9.  Based on his record of indiscipline which includes being AWOL for 144 days; failure to obey a lawful order; and failure to report to duty, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to relief requested.

  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)                                         AR20140005481





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ABCMR Record of Proceedings (cont)                                         AR20140005481



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