IN THE CASE OF: BOARD DATE: 24 July 2014 DOCKET NUMBER: AR20130021161 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 (UD). 2. The applicant states he was very young during his period of service. He had a lot of family issues and he did not handle the situations correctly. He has since been a good citizen. He understands how important it is to serve his country. He has done well in life, but he wants his discharge upgraded so he can feel complete. 3. The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty). 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, in pay grade E-1, on 31 August 1973. He served as an offset pressman. At the time of his enlistment, he was 18 years, 3 months, and 29 days of age. He was advanced to pay grade E-2 on 31 December 1973. 3. On 1 April 1974, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order from a superior officer. 4. On 26 April 1974, he was issued a Letter of Reprimand for following too closely and causing a traffic accident. 5. On 26 September 1974, he accepted NJP under Article 15, UCMJ, for wrongfully possessing 0.15 grams more or less of marijuana and tetrahydocannabinol. 6. On 1 October 1974, he was reported absent without leave (AWOL). He was dropped from the rolls of his organization on 31 October 1974. 7. On 13 December 1974, a DD Form 458 (Charge Sheet) was completed by the Commander, Command and Control Company, 8th Psychological Operations Battalion, Fort Bragg, NC. The applicant was charged with one specification of being AWOL from 1 October through 3 December 1974. 8. On 18 December 1974, he accepted NJP under Article 15, UCMJ, for willfully disobeying a lawful order from his commanding officer. 9. On 29 December 1974, charges were preferred against him. 10. On 3 February 1975, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trial by court-martial. He acknowledged he could be discharged under other than honorable conditions and furnished a UD Certificate and the result of the issuance of such a discharge. He waived his rights and elected to submit a statement in his own behalf. 11. In his statement, the applicant stated that he enlisted in the military with a considerable amount of problems. He was hoping and looking for a possible solution, but his problems had increased by 50 percent. He honestly did not feel he was running from the problems, but he felt if he were to be discharged he could deal with his problems simply because they were at home. 12. On 26 February 1975, the applicant's company commander recommended approval of the applicant's discharge. The company commander stated: a. The recommendation was based upon numerous incidents of a discreditable nature with military and civilian authorities. The applicant was AWOL for more than 60 days; received three Article 15s, one for possession of a control substance, one for misconduct, and one for disobeying an order from a superior officer. The applicant had a record of driving under the influence of alcohol. The applicant had been denied promotion to private first class because of marginal performance of duty and continued substandard military appearance. b. The applicant had not responded to counseling and he was more preoccupied with his personal problems that he was with his military performance. The applicant had determined that the Army could no longer benefit him. It was deemed further rehabilitative efforts would prove fruitless. 13. On 27 February 1975, the applicant's battalion commander recommended approved of the applicant's discharge. The battalion commander stated that he had talked to the applicant on other occasions concerning his attitude and other problems which were neither in his best interest nor that of the military. The applicant failed to respond to advice or counseling and he felt that the applicant's retention in the service would be a liability. 14. On 28 February 1975, the applicant's group commander recommended approval of the applicant's discharge. The group commander stated that he had personally interviewed the applicant and the applicant indicated that he could not adjust to being a Soldier, he was well aware of what being discharged under chapter 10 would mean to him, and he wanted to be discharged. 15. On 17 March 1975, the separation authority approved the applicant’s request and directed the issuance of an UD. 16. He was discharged in pay grade E-1 accordingly on 24 March 1975. He was credited with completing 1 year, 2 months, and 21 days of net active service and 62 days of time lost. He was issued a UD Certificate. 17. On 9 April 1976, the Army Discharge Review Board denied his request for an upgrade of his discharge. 18. Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulations stated in: a. Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial. The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel. The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority. A UD Certificate would normally be furnished to an individual who was discharged for the good of the service. b. Paragraph 3-7a - an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. c. Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was 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. Discharge actions processed under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu by court-martial. He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. He stated that several times he had requested to be discharged, but was refused, so he went AWOL. 2. The applicant's company commander stated that the applicant had been denied promotion to private first class because of marginal performance of duty and continued substandard military appearance, had not responded to counseling, was more preoccupied with his personal problems that he was with his military performance, and he had determined that the Army could no longer benefit him. His chain of command echoed the same sentiments. 3. His contention that he was very young during his period of service is acknowledged. He was 18 years, 3 months, and 29 days of age at the time of his enlistment and 18 years, and 6 months of age at the time of the offense. However, there is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service. His unit commander stated the applicant had become disillusioned with the military and his retention was not in the best interest of the Army. 4. He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge. The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge. 5. Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations in effect at the time and the current version, with no procedural errors which would tend to jeopardize his rights. He was properly discharged in accordance with pertinent regulations with due process. Therefore, he is not entitled to an upgrade of his discharge. 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) AR20130021161 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130021161 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1