IN THE CASE OF:	  

		BOARD DATE:	   10 February 2015

		DOCKET NUMBER:  AR20140011571 


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 that his under other than honorable conditions discharge be upgraded and all entitlements be issued.    

2.  The applicant submitted a three-page supplement to his DD Form 149 (Application for Correction of Military Records).  The applicant states, in effect, the following: 

* he enlisted in the U.S. Army via the "buddy plan" – he was only 17 years old and received parental consent from his mother 
* he explains his military service and that he was given guarantees that the Army did not live up to – consequently, he felt a great deal of animosity, mistreatment, and was very disenchanted 
* he was stationed in Germany after his initial training, instead of Vietnam with his fellow classmates
* he reenlisted for 6 years while in Germany in order to be "guaranteed" an assignment to Vietnam as soon as he was 18 years old
* while on leave he went absent without leave (AWOL) and turned himself in because they (the Army) told him he was going back to Germany
* subsequently, he went AWOL four or five more times until he was eventually sent to the disciplinary units at Fort Riley and Fort Meade
* his reenlistment should be invalidated since he was still 17 years old and his mother did not give parental consent 
* he should be issued an honorable discharge with all entitlements 
* he was young and lacked mature judgment while in the Army 
* he summarizes his trials and run-ins with law enforcement after leaving the Army 
* he states, due to the various injustices perpetrated by the Army and his circumstances, an upgrade to his discharge and appropriate measures need to be taken so that he will be eligible for Department of Veterans Affairs (VA) benefits

3.  The applicant provides 2 DD Forms 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 30 March 1952.  He enlisted in the Regular Army on 9 April 1969 at the age of 17 years and 10 days for a period of 3 years with no stipulations.  His DD Form 4 (Enlistment Contract – Armed Forces of the United States) does not show he enlisted under the "buddy plan."  Since he was a minor, his mother consented to his enlistment by signing a DD Form 373 (Consent, Declaration of Parent or Legal Guardian).  

3.  On 11 December 1969, he reenlisted at the age of 17 years, 8 months and   12 days for a period of 6 years for present duty assignment, which was Company C, 2nd Battalion 15th Infantry Regiment, 3rd Infantry Division, U.S. Army Europe. His DD Form 4 does not show he enlisted for assignment to Vietnam.  A review of his record reveals a DA Form 2492-R (Consent of Parent(s) or Legal Guardian(s) for Amendment and/or Extension of Enlistment or Reenlistment of a Minor), which was signed by his mother on 19 November 1969.  

4.  On 2 February 1970, before a special court-martial at Wurzburg, Germany, he was convicted of the following:

* Charge I for violating Article 86 of the Uniform Code of Military Justice UCMJ; specifically, for being AWOL from on or about 12 January 1970 to on or about 13 January 1970
* Charge II for violating Article 92 of the UCMJ; specifically, for violating a lawful general order, to wit; by having in his possession an item of destruction, to wit: an M26A1 Fragmentation Grenade on or about          24 January 1970
* Charge III for violating Article 121 of the UCMJ; specifically, wrongfully appropriate a M26A1 Fragmentation Grenade of a value of $6.20, the property of the United States Government on or about 24 January 1970

5.  Records show he received non-judicial punishment (NJP) under the provisions of Article 15 of the UCMJ, on three separate occasions – 

* on 7 April 1970, for being AWOL on or about 17 March 1970 and for failing to go to an appointed place of duty on 31 March 1970
* on 25 August 1970, for being AWOL on or about 5 July 1970 to on or about 18 August 1970
* in September 1970, for being AWOL on or about 4 September 1970 to on or about 6 September 1970 and for failing to go to an appointed place of duty on or about 25 September 1970

6.  On 26 January 1971, court-martial charges were preferred against him for being AWOL from on or about 12 October 1970 to on or about 8 January 1971.

7.  On 28 January 1971, he consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he would be deprived of many or all Army benefits, that he might be deprived of many or all benefits administered by the VA, and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

8.  On 9 February 1971, the appropriate authority approved his request and directed he receive an undesirable discharge.  On this same date, he was discharged from the Army under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  The DD Form 214 he was issued shows his service was characterized as under other than honorable conditions.  

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, type of discharge normally given under the provisions of this chapter, the loss of VA 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 an individual who was discharged for the good of the Service.

11.  Army Regulation 635-200, 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 contention that his 9 February 1971 discharge should be upgraded and all entitlements be issued was carefully considered.  He contends he was still 17 years old when he reenlisted and his mother did not give parental consent for his reenlistment.  He contends the Army did not live up to its contractual agreements with him since they did not reassign him to Vietnam.  He contends his second reenlistment should be invalidated and his discharge should be upgraded to an honorable discharge.

2.  There is no evidence he enlisted for the "buddy plan" or reenlisted for assignment to Vietnam.  A review of his record reveals his mother consented to his reenlistment on 19 November 1969.  There is no evidence that shows the Army did not fulfill its contractual obligations with him during his service.  Therefore, his enlistment and reenlistment appear to be valid and there is no basis for invalidating his reenlistment.

3.  He contends his youth and immaturity led to his behavior; however, age is not a sufficiently mitigating factor in his misconduct.  There is no evidence indicating he was any less mature than other Soldiers of the same age who had completed their terms of military service.

4.  He voluntarily requested separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial. There is no indication his request was made under coercion or duress.

5.  He was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

6.  Based on his record of indiscipline, including lost time due to being AWOL, NJP, and a court-martial conviction, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to either a general discharge.

7.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran’s benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.      

8.  Based on the foregoing, there is no basis to grant the applicant's request and as such should be denied.

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)                                         AR20110008181



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ABCMR Record of Proceedings (cont)                                         AR20140011571



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