IN THE CASE OF: BOARD DATE: 30 April 2013 DOCKET NUMBER: AR20120017847 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 discharge. 2. The applicant states at the time he was inducted into the Army he was not reliable and would not account for his actions. He consistently made poor choices which resulted in his undesirable discharge. 3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a self-authored letter, and multiple character reference letters. 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 complete military records are not available for review. An exhaustive search was undertaken to locate his military records which are necessary for the processing of his application. Unfortunately, they could not be found. However, the applicant provides a DD Form 214 which is sufficient in a reconstructed record to conduct a fair and impartial review of this case 3. The applicant's DD Form 214 shows he was born on XX May 1949 and he was inducted into the Army of the United States on 13 March 1969, at nearly 20 years of age. 4. His DD Form 214 further shows at the time of his separation, he held military occupational specialty 76Y (Unit Supply Specialist) and he was assigned to Company B, Support Battalion, U.S. Army Garrison, Fort Meade, MD. 5. The complete facts and circumstances, including the court-martial charge sheet and separation packet, are not available for review with this case. However, his record contains a duly-constituted DD Form 214 that shows: a. He was discharged on 14 June 1972 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service - in lieu of trial by court-martial with a character of service of under conditions other than honorable, and the issuance of a DD Form 258A (Undesirable Discharge Certificate). b. He completed 6 months and 26 days of active military service and he had 396 days of lost time. c. He had lost time from 1 September to 7 November 1969, 8 December 1969 to 18 March 1970, 11 to 26 April 1970, 9 to 14 May 1970, and 16 May to 17 October 1970. 6. He provides a self-authored letter and multiple character reference letters and/or letters of support from various individuals as follows: a. In his self-authored letter, he states he was young and incapable of handling responsibility at the time. Even after discharge, he continued to make mistakes and exhibit poor judgment. As he grew older, he began to fully understand and realize his mistakes. b. Multiple statements from various individuals who have known him for some time. The authors describe him as a persistent person who accomplishes anything he sets his mind on. He is knowledgeable, wise, loyal, respectful, energetic, enthusiastic, peaceful, industrious, generous, law-abiding, honorable, and reliable, 7. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation. 8. 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 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 an individual who was discharged for the good of the Service. 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's record is void of the specific facts and circumstances surrounding his discharge action. It appears that he was charged with the commission of offense(s) 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. 2. The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he admitted guilt and waived his opportunity to appear before a court-martial. It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. Further, the applicant’s discharge accurately reflects his overall record of service. 3. His DD Form 214 shows he entered the military at nearly 20 years of age. However, there is no evidence in his records and he provides none to corroborate his contention that his extensive history of lost time is caused by his age or that he was any less mature than other Soldiers of the same age who successfully completed their service. 4. The multiple character reference letters submitted with his application are noted. However, none explains his lost time or provide insight of what caused the applicant to have 396 days of lost time. 5. Based on his record of indiscipline, 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. Therefore, there is no basis for granting him the requested 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) AR20120017847 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120017847 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1