BOARD DATE:	  1 August 2013

		DOCKET NUMBER:  AR20120020530 


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 to an honorable discharge.

2.  The applicant states:

* at the time of his discharge he was told his discharge would be changed to an honorable discharge
* he is in need of medical care and this is how he found out about the type of discharge he received
* he was trying to use his Department of Veterans Affairs (VA) benefits and he was told he needed to get his discharge changed first, if possible
* he was hoping to get an early out after coming back from Korea
* he was hoping to go to work for Bell Telephone, but because so many came home from Vietnam at that time his early out was cancelled
* he had approximately 6 months of remaining service and he had been a good Soldier
* he was young and dumb when he went absent without leave (AWOL) and ended up in the stockade at Fort Riley, Kansas
* he was told that he could finish serving his time in the military or he could sign a paper and get out of the Army with the understanding that his discharge could be changed to honorable after a certain amount of time
* he believes he did his duty in the Army and he received medals and commendations for his duties in communications in Korea

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 13 July 1970, at age 17.  He completed training as a field wireman.  

3.  On 11 December 1970, the applicant was convicted, pursuant to his plea, by a summary court-martial of being AWOL from 10 November until 30 November 1970.

4.  He arrived in Korea on 6 October 1971.  

5.  On 17 April 1972, the applicant accepted nonjudicial punishment (NJP) for failure to obey a lawful order.

6.  On 5 November 1972, he departed Korea en-route to the United States.

7.  The applicant went AWOL on 29 January 1973 and he remained absent until he was apprehended by federal authorities on 9 April 1973.

8.  On 25 April 1973, the applicant was notified that charges were pending against him for being AWOL from 29 January until 7 April 1973.  He acknowledged receipt of the notification.  He submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  

9.  In his request for discharge, the applicant elected to submit a statement in his own behalf stating that he had been in the service for about 31 months and he just didn't know how he took all of the "sh**" he had since he had been in Army.  He stated he could not stand anything the Army stood for and he didn't intend to spend any more time than he had to.  He stated he wanted out of the Army and he did not care what it took to get out.  He stated he would not return to duty under any conditions.  The applicant acknowledged he understood the following:

* if his request for discharge was accepted, he could be discharged under other than honorable conditions 
* as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits
* he could be ineligible for many or all benefits administered by the VA
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge

10.  The appropriate authority approved the request for discharge on 22 May 1973 and directed the issuance of an undesirable discharge.  On 30 May 1973, the applicant 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.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 2 years, 6 months, and 28 days of total active service.  He had approximately 110 days of lost time.  He received an Undesirable Discharge Certificate.

11.  His records do not show that he ever petitioned the Army Discharge Review Board for an upgrade of his discharge within the board's 15-year statute of limitations.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 10 states that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge was normally considered appropriate at the time of the applicant’s discharge.

   b.  Paragraph 3-7a states 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.
   
   c.  Paragraph 3-7b states 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 contentions have been noted.  

2.  His records show that he enlisted in the Army on 13 July 1970 and he accepted NJP on 11 December 1970 for failure to obey a lawful order.  He went AWOL on 10 November 1970 and he continued to go AWOL until he was discharged on 30 May 1973.

3.  Charges were pending against him for being AWOL when he submitted his request for discharge for the good of the service in lieu of trial by court-martial.  In his request for discharge he stated he had been in the service for about 31 months and he just didn't know how he took all of the "sh**" he had since he had been in Army.  He stated he could not stand anything the Army stood for and he didn't intend to spend any more time than he had to.  He stated he wanted out of the Army and he did not care what it took to get out.  He stated he would not return to duty under any conditions.  The fact that he had 2 years, 6 months, and 28 days of total active service is not a basis for upgrading his discharge.

4.  There is no evidence in the available record to substantiate the applicant's contention that he was told his discharge would be upgraded to honorable after a period of time.  Youth and immaturity is also no basis for upgrading his discharge.

5.  The type of discharge he received appropriately reflects his overall record of service.  Considering the nature of his offenses the type of discharge he received was not too severe.  His service simply did not rise to the level of a general or an honorable discharge.

6.  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 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)                                         AR20120020530



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120020530



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1