IN THE CASE OF: BOARD DATE: 12 November 2015 DOCKET NUMBER: AR20150004833 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 correction of his military records by upgrading his undesirable discharge (UD) to honorable. 2. The applicant states his options at the time of his discharge were not explained to him. He did not know about the ramifications of the type of discharge he received. Since leaving the service, he has had a successful and trouble free life. He enlisted in the Army with the intent to make the military his career. He planned to attend West Point. He was honorably discharged for the purpose of immediate reenlistment. About 3 months into his reenlistment, he went into town with some friends. They met two off-duty military policemen who verbally assaulted them. Being in a Soldier mode, his first instinct was to protect his buddies and himself. In self-defense, he took out his knife and cut both men. Their injuries were not life threatening. He was arrested. He procured a lawyer. Before trial, the charges were dropped. He contends that a lieutenant told him he had no future in the armed services and that he should get out. He was advised of several things he could and should do to get out of the military. He argues that he was young, green, and gullible. He followed the lieutenant’s instructions which led to his less than honorable discharge. He now asks for an honorable discharge based on the facts he now mentions. 3. The applicant provides copies of: * DD Form 256A (Honorable Discharge Certificate) dated 14 January 1971 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) effective 6 May 1971 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. On 6 October 1969, the applicant, at 20 years of age, enlisted in the Regular Army. He completed basic training, to include the basic airborne course. He was trained as a television equipment repairman. 3. In 1970, the applicant accepted nonjudicial punishment (NJP) on the following occasions: * 15 June 1970: Failure twice to go to his appointed place of duty at the prescribed time and failure to obey a direct lawful order * 9 September 1970: Failure to go to his appointed place of duty at the prescribed time 4. On 10 November 1970, the applicant was advanced to private first class, pay grade E-3. 5. On 14 January 1971, the applicant was honorably discharged for the purpose of immediate reenlistment. He had completed 1 year, 3 months, and 9 days of creditable active duty service. On 15 January 1971, he reenlisted for a period of 4 years. 6. On 25 January 1971, the applicant accepted NJP for failure to go to his appointed place of duty; to wit guard duty. 7. On 4 March 1971, the following charges were preferred under the Uniform Code of Military Justice (UCMJ): a. Charge I: Violation of Article 86, UCMJ, for failure to go to his appointed place of duty (three specifications); and b. Charge II: Violation of Article 92, UCMJ, for failure to obey a lawful order (three specifications). 8. On 9 March 1971, the applicant underwent a routine psychiatric evaluation performed by a medical officer, who was not a psychiatrist. The applicant was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right. He had the mental capacity to understand and to participate in board proceedings. 9. On 26 March 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him. 10. After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He acknowledged he had been advised of and understood his rights under the UCMJ; that he could receive an UD discharge which would deprive him of many or all of his benefits as a veteran; and that he could expect to experience substantial prejudice in civilian life if he received an UD discharge. 11. In his request for discharge, the applicant indicated that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 12. Records show that applicant was absent without leave (AWOL) for 7 days from 12 to 18 April 1971. 13. On 28 April 1971, the appropriate separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate). 14. On 6 May 1971, the applicant was discharged accordingly. His DD Form 214 shows that he was administratively discharged under the provisions of Army Regulation 600-200, with a separation program number 246, for the good of the service. His service was characterized as under conditions other than honorable. He completed a total of 1 year, 8 months and 7 days of creditable active duty service. 15. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge. 16. Under the UCMJ, the maximum punishment allowed for violation of Article 92 for failure to obey a general order or regulation is 2 years confinement and a punitive discharge. 17. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial. An undesirable discharge was normally considered appropriate. 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 (emphasis added), 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his military records should be corrected by upgrading his UD to honorable because the options at the time of his discharge were not explained to him. Since leaving the service, he has had a successful and trouble free life. He further contends that he was young, green, and gullible as evidenced by his following a lieutenant’s advice leading him to an UD. 2. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial. The available documentation indicates that all requirements of law and regulation were met. The rights of the applicant were fully protected throughout the separation process. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 3. The available evidence indicates that the applicant received legal counsel and was not denied due process. 4. The applicant's service clearly does not meet the standards of acceptable conduct for Army personnel. His misconduct and lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge. 5. The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief. The Board notes that the applicant was 20 years of age, when he enlisted in the Regular Army. He satisfactorily completed training and had served for over a year before any negative incidents are documented. His satisfactory performance demonstrated his capacity to serve and showed that he was neither too young nor immature. 6. In view of the foregoing, the applicant's request 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) AR20130021516 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004833 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1