DOCKET NUMBER:  AR20120007475 


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, in effect, an upgrade of his discharge under other than honorable conditions to general under honorable conditions.

2.  The applicant states that he was denied and/or was never provided an answer in reference to his last application for a clemency discharge pursuant to Presidential Proclamation 4313.

3.  The applicant states that while stationed at Aberdeen Proving Ground, MD, a Soldier threatened his life.  He contends he told the company commander but nothing was done about the situation.  The last time he saw the Soldier, the Soldier was pointing a pistol at him out of his car window so he decided to leave.

4.  The applicant provides a Health Care System Diagnostic Imaging Report.

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 on 9 March 1971.

3.  On 9 June 1971, court-martial charges were preferred against him for wrongfully having in his possession one ounce, more or less, of marijuana.

4.  On 9 July 1971, he was absent without leave (AWOL) and remained AWOL until apprehended by civilian authorities on 6 December 1973.

5.  On 12 December 1973, court-martial charges were preferred against him for the AWOL offense.

6.  He consulted with legal counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge.  He indicated in his request that he understood he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he would be deprived of many or all Army benefits, that he might be deprived of many or all benefits administered by the Veterans Administration (VA), and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

7.  The applicant indicated that he elected to make a statement.  The attached statement appears to have been prepared by a third person, but was signed by the applicant.  The statement indicated the applicant was having difficulty performing his duties because of excessive use of drugs.  He volunteered for treatment and was counseled by a psychiatrist.  He did not feel he could continue to serve and requested discharge.  The discharge paperwork was assembled but no action was taken.  He got tired of waiting and left.

8.  On 17 December 1973, a representative from the office of the Staff Judge Advocate reviewed the separation action and found it within the purview of Army Regulation 635-200.

9.  On 19 December 1973, the appropriate authority approved his request and directed that he receive an Undesirable Discharge Certificate.  On 27 December 1973, he was discharged accordingly.  His DD Form 214 shows he completed 4 months and 22 days of creditable active service and accrued 880 days of lost time.
10.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.  There is also no evidence indicating he submitted an application for a clemency discharge pursuant to Presidential Proclamation 4313.

11.  He provided a Health Care System Diagnostic Imaging Report that indicates he was treated for a medical condition on or about 8 January 2011.

12.  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.

13.  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.

14.  Presidential Proclamation 4313, dated 16 September 1974, was issued by President Ford and affected three groups of individuals.  One group was members of the Armed Forces who were in an unauthorized absence status.  These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under Presidential Proclamation 4313 or to stand trial for their offenses and take whatever punishment resulted.  For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform.  If they completed the alternate service satisfactorily, they would be entitled to receive a clemency discharge.  The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded has been carefully considered.

2.  He contends that a Soldier threatened his life and that he informed his commander but the commander did nothing about the situation.  However, there is no evidence substantiating his contention.

3.  The record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  His voluntary request for discharge under the provisions of chapter 10, Army Regulation 
635-200, to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication the request was made under coercion or duress.  He elected to make a statement with his request for discharge.  Although the statement appears to have been prepared by a third-party, the applicant could have included his concerns about being threatened in the statement (in a handwritten addendum, if he was not able to have it incorporated into the typed statement), but he did not do so.

4.  His record of indiscipline includes court-martial charges for marijuana possession, being AWOL, and 880 days of lost time.  Based on this record of indiscipline and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of a general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  In view of the foregoing, his 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 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)                                         AR20120007475



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ABCMR Record of Proceedings (cont)                                         AR20120007475



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