IN THE CASE OF:	  

		BOARD DATE:	  21 September 2011

		DOCKET NUMBER:  AR20110004707 


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 his discharge under other than honorable conditions be upgraded to a general discharge under honorable conditions.

2.  The applicant states:

* he was absent without leave (AWOL) because of family issues
* his first sergeant told him he would be removed from the unit rolls if he remained absent for 30 days and he would be given a new duty station to turn himself in
* after turning himself in, he was given a summary court-martial and sent to the stockade
* a staff sergeant had him beaten in the stockade and sent to solitary confinement
* the staff sergeant refused him medical aid
* he escaped from the stockade because he feared for his life
* he returned with a lawyer
* he has been an upstanding citizen since the incidents
* he needs his discharge upgraded to qualify for a Department of Veterans Affairs (VA) home loan

3.  The applicant provides a self-authored statement, six character reference letters, and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).



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, and 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 on 12 April 1968.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 15E (Pershing missile crewman).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  The applicant was convicted by a summary court-martial on 13 June 1969 for being AWOL during the period 14 April through 27 May 1969.

4.  The applicant was convicted by a special court-martial on 14 April 1970 for being AWOL during the period 18 June 1969 through 11 March 1970.

5.  On 5 May 1970, while the applicant was serving his sentence in the stockade, he escaped from an unarmed guard while on a work detail and was AWOL.

6.  On 5 August 1970, the applicant returned himself to military control.  Upon his return he was taken into custody and assigned to a correctional holding detachment.

7.  On 6 August 1970, charges were preferred against the applicant for being AWOL.

8.  On 7 August 1970, the applicant 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 (Enlisted Separations), chapter 10.

9.  The applicant consulted with legal counsel and was fully advised of the nature of his rights under the Uniform Code of Military Justice, the elements of the offenses for which he was charged, the possible effects of an under other than honorable conditions discharge, and the procedures and rights available to him.

10.  In his request for discharge, the applicant acknowledged he understood by requesting discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

11.  The applicant provided a statement in support of his request for discharge in which he stated:

* he was AWOL for 45 days while assigned to Fort Sill, OK
* he voluntarily turned himself in
* he was again AWOL for a period of 9 months
* he was apprehended by civilian authorities for possession of marijuana and returned to military custody
* he can't handle people telling him what to do and keeping him locked up
* he suffered from severe headaches and sought relief with drugs
* he was glad he was placed in pre-trial confinement so he would not be able to be AWOL again

12.  On 1 September 1970, the applicant's commander approved his request and ordered issuance of an undesirable discharge.

13.  On 9 September 1970, the applicant was discharged accordingly.  He completed 1 year, 1 month, and 28 days of total active service with 460 days of lost time due to AWOL and confinement.

14.  There is no evidence in the applicant's records to show he was AWOL because of family issues or that he requested help from his chain of command or other military personnel for assistance with his family matters.

15.  There is no evidence in the applicant's record to show his first sergeant told him if remained absent for 30 days he would be removed from the unit rolls and given a new duty station to turn himself in.

16.  There is no evidence in the applicant's record to show he was beaten or that his life was threatened while he was in the stockade.

17.  On 26 September 1978, the Army Discharge Review Board informed him that it had reviewed his case and determined he was properly and equitably discharged.  Accordingly, his request for a change in the character and/or reason of his discharge was denied.

18.  The applicant provides six character reference letters which essentially state that he is a hard working and dependable friend, employee, father, and husband.  Additionally, he is involved in the community as a coach and a mentor.

19.  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, the type of discharge normally given under the provisions of this chapter, the loss of VA 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.

20.  Army Regulation 635-200, 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's request to have his discharge upgraded to general under honorable conditions was carefully considered and determined to lack merit.

2.  There is no evidence in his record and he has not provided evidence to show he sought assistance from his chain of command for his family issues.

3.  There is no evidence in his record and he has not provided evidence to support his argument that he was beaten and received death threats while in the stockade.

4.  The applicant received two court-martial convictions for being AWOL.  This behavior did not meet the standards of acceptable conduct for Army personnel.

5.  The applicant was pending trial by court-martial for being AWOL again when he voluntarily requested to be administratively discharged.  In doing so he acknowledged guilt of the charges against him.

6.  By the time the applicant was discharged he had accrued a total of 460 days of lost time due to AWOL and confinement.

7.  The available evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Further, the applicant's discharge accurately reflects his overall record of service.  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 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)                                         AR20110004707



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ABCMR Record of Proceedings (cont)                                         AR20110004707



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