IN THE CASE OF:	   

		BOARD DATE:	  8 January 2014

		DOCKET NUMBER:  AR20140008884 


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, in effect, he was forced by his mother to enter the Army at age 17 so that he could help the war effort in Vietnam, even though the war was over.  He developed medical issues, which can be confirmed in his medical records, and these issues made him confused.  At his current age, he is uncertain as to what decisions to make, implying this is due to his medical issues.  He states he never knew he had diabetes.

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 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 enlisted in the Regular Army on 2 January 1974 at the age of 17.  After completing initial training, he was awarded military occupational specialty (MOS) 76P (Stock Control and Accounting Specialist), after which he completed training for and was awarded MOS 76U (Repair Parts Specialist).  The highest rank/grade he attained was private/E-2.

3.  He was awarded or authorized the National Defense Service Medal, Marksman Marksmanship Qualification Badge with Rifle Bar, and the Sharpshooter Marksmanship Badge with Grenade Bar.

4.  Available records indicate the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions:

* on 27 March 1974, for failing to obey the lawful order of a superior noncommissioned officer
* on 3 October 1974, for being absent without leave (AWOL) from 11 July 1974 to 18 September 1974
* on 17 April 1974, for 3 specifications for failing to go to at the time prescribed to his appointed place of duty 

5.  On 4 March 1975, he was convicted by a summary court-martial for 2 specifications of AWOL (10 February 1975 to 12 February 1975 and 5 November 1974 to 30 January 1975, respectively).

6.  On 29 April 1975, the applicant's commander initiated separation action under the provisions of paragraph 13-5a (Unfitness), chapter 13, Army Regulation   635-200.  This request was returned without action to the unit on 20 May 1975 because the applicant had been dropped from the Army rolls as of 9 May 1975.

7.  He returned to military control on 7 July 1975, then went AWOL again on 28 August 1975.  He returned to military control on 4 May 1976.

8.  His commander preferred court-martial charges on 5 May 1976.

9.  Also on 5 May 1976, 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 the procedures and rights available to him.  Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  

10.  In his request for discharge, he indicated he:

* was making the request of his own free will and had not been subjected to any coercion whatsoever by any person 
* understood by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* understood if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration
* understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* elected not to submit a statement in his own behalf

11.  On 14 May 1976, the separation authority approved his request for discharge in lieu of court-martial with the issuance of an Undesirable Discharge Certificate.  On 25 May 1976, he was discharged accordingly.

12.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  This form shows he completed 1 year, 3 months, and 10 days of active service and he had 409 days of lost time.

13.  On 22 August 1977, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge.  On 12 December 1978, the Office of the Adjutant General, Reserve Components Personnel and Administration Center, notified the applicant that, based on a court decision, he had the right to request an entirely new review of his case.  He submitted his new request but, on 8 July 1981, the ADRB again denied his request.

14.  His records are void of any information regarding chronic medical issues that might be linked to his repeated absences.

15.  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, an under other than honorable conditions discharge 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's request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there was insufficient evidence to support his request.

2.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. Discharges under this chapter are due to a voluntary request for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

3.  Records show the applicant was 17 years of age at the time of his enlistment and age 19 at the time his commander initiated separation action under chapter 10, Army Regulation 635-200.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

4.  Based on his record of misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Accordingly, there is insufficient basis upon which to grant the applicant's request for 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)                                         AR20140008884





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ABCMR Record of Proceedings (cont)                                         AR20140008884



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