IN THE CASE OF: BOARD DATE: 11 February 2016 DOCKET NUMBER: AR20150006123 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: a. Due to his age at the time of his enlistment in the Army and his attitude, he found injustices within the rank system and how a junior Soldier was treated and subsequently acquired an attitude that did not fit within the Army at that time. b. With years and maturity he has changed his attitude and realizes he missed out on a great opportunity in the military. c. He enlisted voluntarily and completed basic and advanced individual training. He was also promoted twice and performed in his occupational skill with great success. d. His attitude was his downfall in the military. 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 was born on 17 December 1957. He enlisted in the Regular Army on 31 January 1975 for a period of 2 years. He completed his training and was awarded military occupational specialty 05C (radio teletype operator). He was advanced to private first class effective1 February 1976. 3. On 21 May 1976, charges were preferred against him for: * violating a lawful general regulation (possessing a switchblade knife) * failing to obey a lawful order * assaulting a specialist four by striking at him with a means likely to produce grievous bodily harm (a hair pick with long metal teeth) * communicating a threat to injure * possessing heroin 4. Trial by special court-martial was recommended. 5. On 1 June 1976 after consulting with counsel, he submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He indicated he understood he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws. He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge. He elected not to submit a statement in his own behalf. 6. On 14 June 1976, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of an undesirable discharge. 7. On 6 July 1976, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and issued an Undesirable Discharge Certificate. He completed 1 year, 5 months, and 6 days of total active service. 8. There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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 to an individual who was discharged for the good of the service. Chapter 10 of the version currently in effect is essentially unchanged. 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 implies he was young when he enlisted; however, age is not a sufficiently mitigating factor. Although he was 17 years of age when he enlisted, he successfully completed training. There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service. 2. His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and conformed with applicable regulations. He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so. 3. The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case. 4. His record of service included numerous serious offenses for which special court-martial charges were preferred against him. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. 5. There is an insufficient evidentiary basis for granting the applicant an honorable or a general 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 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) AR20150006123 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006123 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1