IN THE CASE OF:	  

		BOARD DATE:	  20 November 2014

		DOCKET NUMBER:  AR20140007169 


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 a discharge upgrade.

2.  The applicant states, in effect, his discharge should be upgraded to a general discharge under honorable conditions.  While he accepts responsibility for the actions that led to his discharge, he feels he was young and immature, and deserves a second chance.  He gave the Army a little over 2 years of good service and did not really understand the implications of an other than honorable discharge when he made his request.

3.  The applicant provides a DD Form 214 (Report of Separation from Active Duty) and 2 letters of support.

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 in August 1954 and enlisted in the Regular Army at 19 years of age, on 31 August 1973.  He held military occupational specialty 11B (Infantryman), and the highest rank/grade he attained was private first class/E-3.

3.  While stationed in Germany, on 17 June 1975, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on one occasion for failing to be at his appointed place of duty.  Also included are statements showing the applicant assaulted another service member, and an indorsement by an Infantry battalion commander wherein he recommends special court-martial on the basis of those statements.

4.  The applicant’s discharge packet is not available.  However, his DD Form 214 shows he was discharged on 9 October 1975, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service, with an under other than honorable conditions discharge.  He completed a total of 2 years, 1 month, and 1 day of creditable active military service and had 8 days of lost time for the period 11 May 1974 through 18 May 1974.

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

6.  The applicant provides 2 letters of support which essentially state the applicant is a responsible, church-going member of the community who has shown leadership by being active in men’s ministry.  Upgrading his discharge would allow him to apply for medical benefits at the local Department of Veterans Affairs Medical Center.

7.   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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

   b.  Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.

   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.  Absent evidence to the contrary, the applicant’s request for separation for the good of the service to avoid trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 is presumed to have been voluntary, administratively correct, and in compliance with applicable regulations.

2.  There is no evidence the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

3.  The applicant was 19 years of age at the time of his enlistment and at or near 21 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

4.  The applicant's record reflects a history of indiscipline.  The applicant's disciplinary history clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  Accordingly, there is no basis upon which to grant the 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)                                         AR20140007169





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ABCMR Record of Proceedings (cont)                                         AR20140007169



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