IN THE CASE OF:	  

		BOARD DATE:	  16 April 2013

		DOCKET NUMBER:  AR20120016784 


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, in effect:

	a.  He was misled to believe that if he signed a resignation he would receive an honorable discharge because he had less than 6 months left on his enlistment contract.  After his 13-month tour in Korea he requested Christmas leave.  His commanding officer signed the leave orders and sent them up to battalion to be signed.  When the day arrived for his leave to begin his orders had not yet come back from battalion headquarters.  He made the stupid mistake of jumping the gun and he left.

	b.  He asked one of the other guys to mail him the orders.  The guy did not mail the orders to him.  When he returned he was placed in the stockade.  While in the stockade a young officer told him that he could resign and save the Army the expense and time of a special court-martial since he had less than 6 months left in the Army.  The officer assured him that he would get an honorable discharge.  The Army did not honor their end of the agreement.     

3.  The applicant provides 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, 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 19 September 1967 for a period of 3 years.  He completed his training and was awarded military occupational specialty 94B (cook). 

3.  On 2 August 1968, he was convicted by a special court-martial of aggravated assault (stabbing a Soldier with a hunting knife) and violating a lawful general regulation (possessing and carrying a knife with a blade longer than 3 inches).  He was sentenced to be confined at hard labor for 3 months and to forfeit $68.00 pay for 3 months.  On 10 August 1968, the convening authority approved the sentence but suspended the confinement for 3 months.

4.  On 25 February 1970, he was convicted by a special court-martial of being absent without leave (AWOL) from 22 December 1969 to 6 January 1970.  He was sentenced to forfeit $60.00 pay for 6 months and to be reduced to E-1.  On 17 April 1970, the convening authority approved the sentence.

5.  He went AWOL from 13 March 1970 to 30 March 1970.  Charges were preferred against him for the AWOL period on 9 April 1970.  Trial by special court-martial was recommended.

6.  On 28 April 1970, after consulting with counsel, 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 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request he indicated he understood he could be discharged under conditions other than honorable 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.

7.  On 13 May 1970, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

8.  On 20 May 1970, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with an undesirable discharge.  He completed a total of 2 years and 7 months of active service with 32 days of lost time.

9.  There is no evidence that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  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 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.

11.  Army Regulation 635-200, 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.

12.  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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was misled to believe that if he signed a resignation he would receive an honorable discharge because he only had less than 6 months.  However, evidence shows he consulted with counsel on 
28 April 1970 and in his request for discharge he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate.

2.  His record of service included two special court-martial convictions and 32 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge. 

3.  His voluntary 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, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so.

4.  The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant's request. 

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)                                         AR20120016784



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ABCMR Record of Proceedings (cont)                                         AR20120016784



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