IN THE CASE OF:	  

		BOARD DATE:	  3 September 2015

		DOCKET NUMBER:  AR20150000289 


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 conditions other than honorable discharge. 

2.  The applicant states that while on active duty he was placed in the stockade for returning late from leave.  He was at Fort Bragg, NC.  He believes the punishment was fair and he thought he would return to active duty.  While in the stockade, one of his relatives died.  He asked to go to the funeral and his request was denied.  As a way out, he was confronted with the release from the Army, unknowingly with an under other than honorable conditions discharge.  He was 20 years old and very naive.  Since his release from active duty, he has been a model citizen.  He supported the South Carolina State Troopers and he has worked in nursing homes.  He is an American citizen who loves our country.  He also has family members who are on active duty and whom he encouraged to serve and lead by example. 

3.  The applicant does not provide any 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's records show he was born in January 1952.  He enlisted in the Regular Army at age 17 on 28 January 1969 and he held military occupational specialty 11B (Light Weapons Infantryman).  

3.  Following completion of airborne school, he was assigned to the 3rd Battalion, 325th Infantry Regiment, 82nd Airborne Division, Fort Bragg, NC.

4.  He was honorably discharged on 10 May 1971 for the purpose of immediate reenlistment.  It is noted that the DD Form 214 issued at the time lists an incorrect separation date of 10 May 1972.  His DD Form 214 show he completed
2 years, 3 months, and 13 days of active service.  The applicant may petition this Board to correct this separation date by separate application. 

5.  He reenlisted in the Regular Army for a period of 4 years, at age 20, and in the rank/grade of specialist four/E-4 on 11 May 1971.  

6.  On 7 June 1971, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 17 to 21 May 1971.  

7.  On 16 August 1971, he departed his unit in an AWOL status.  He returned to military control on 7 September 1971.  However, on 18 September 1971, he again departed his unit in an AWOL status.  He ultimately returned to military control on 4 January 1972.  He was in pretrial confinement from 5 January to
28 February 1972.

8.  On 5 January 1972, court-martial charges were preferred against the applicant for two specifications of being AWOL from 16 August 1971 to 
7 September 1971 and from 18 September 1971 to 4 January 1972. 

9.  On 14 January 1972, subsequent to referral of court-martial charges, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), for the good of the service in lieu of trial by court-martial.  In his request for discharge, he stated/acknowledged that:

* prior to completing this request, he was afforded the opportunity to consult with counsel and he did so
* he was making the request of his own free will and he had not been subjected to any coercion
* he acknowledged he understood that if his request was approved he could be furnished an Undesirable Discharge Certificate
* he acknowledged that he understood if such a discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement in his own behalf

10.  On 17 January 1972, his immediate and intermediate commanders recommended approval of the discharge action with the issuance of an Undesirable Discharge Certificate. 

11.  On 17 February 1972, consistent with the chain of command's recommendations, the separation authority approved the applicant's voluntary request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 28 February 1972. 

12.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with his service characterized as under conditions other than honorable.  He completed 3 months and 8 days of active service during this period with lost time from 16 August to 7 September 1971, 
18 September 1971 to 4 January 1972, and from 5 January to 28 February 1972. 

13.  On 10 December 1985, the Army Discharge Review Board denied his petition for an upgrade of his discharge after it was found to be proper and equitable. 

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  Although an honorable or general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate.

	a.  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.

	b.  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 was charged with the commission of an offense punishable under the UCMJ 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 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 his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  The applicant was 17 years of age at the time of his initial enlistment and 20 years of age at the time of reenlistment.  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.

3.  Based on his record of indiscipline, which included an Article 15 and lost time, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his character of service to general or honorable.




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)                                         AR20150000289



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ABCMR Record of Proceedings (cont)                                         AR20150000289



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