BOARD DATE:	  27 June 2013

		DOCKET NUMBER:  AR20120021641 


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, he was having family problems and the Army discharged him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty), three statements of support, and a criminal records check.

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's records show he enlisted in the Regular Army on 28 December 1973 and he was assigned to the 2nd Battalion, 1st Basic Combat Training (BCT) Brigade, Fort Jackson, SC for BCT.

3.  On 5 February 1974, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from his assigned unit from 1 to 2 February 1974.

4.  On 5 March 1974, he completed BCT and he was assigned to the Signal Company Support Battalion, 5th Special Forces Group, Fort Bragg, NC for advanced individual training (AIT).

5.  On 3 June 1974, he was reported in an AWOL status from his assigned unit and he was dropped from Army rolls as a deserter on 2 July 1974.

6.  On 10 July 1974, he was returned to military control at Fort Bragg, NC.

7.  On 26 September 1974, he was reported AWOL from his assigned unit.  On 1 October 1974, he was returned to military control at Fort Bragg, NC.

8.  On 8 October 1974, court-martial charges were preferred against him for one specification of being AWOL from 26 September to 1 October 1974.

9.  He subsequently consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.

10.  In his request for discharge, he acknowledged he understood if the discharge request was approved he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.  He declined to submit a statement on his own behalf.

11.  His immediate and intermediate commanders subsequently recommended approval of the applicant’s request for a discharge with an Undesirable Discharge Certificate.  

12.  His senior commander subsequently stated the applicant had been interviewed on 3 October 1974 concerning his request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He had stated he was aware of the nature of the proceedings and the consequences of an Undesirable Discharge Certificate, but still desired elimination from the service.  The applicant also stated that under no circumstances did he desire further rehabilitation or to perform further military service.  In view of the applicant's prior record and his lack of rehabilitation potential, the senior commander recommended approval of his request for discharge with an Undesirable Discharge Certificate.

13.  On 25 October 1974, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed the issuance of an Undesirable Discharge Certificate.  On 1 November 1974, he was discharged accordingly. 

14.  The DD Form 214 he was issued shows he was discharged for the good of the service - in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with an Undesirable Discharge Certificate.  He completed 10 months and 2 days of net active service with 36 days of lost time due to being AWOL.

15.  There is no evidence in the applicant's available record that shows he ever requested assistance from his command in dealing with any family problems while serving on active duty. 

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

17.  The applicant provides:

	a.  Three statements of support, dated 21 July 2011, 23 July 2011, and 1 August 2011, wherein two friends and a minister stated they have known the applicant between 8 and 30 years and they have never known him to be in any altercations.  He was a nice, humble, friendly, hard-working, positive man who loved his family and grandchildren.

	b.  A South Carolina Criminal Records Check, dated 4 August 2011, that shows he was arrested and charged with assault and battery of a high and aggravated nature on 25 February 1982, disorderly conduct on 25 September 1982, criminal sexual conduct on 3 October 1996, and stalking on 30 August 2001.  The first charge was dismissed; he was convicted of the second charge and paid a $55 fine; and the last two charges were processed as pleas of "nolo contendere." 

18.  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.

19.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 

2.  As such, he voluntarily requested a discharge to avoid trial by a court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.
3.  The evidence of record shows the applicant went AWOL on three separate occasions and he never completed AIT.  There is no evidence in his available records that shows he requested assistance in dealing with family problems while serving on active duty or that he stated he went AWOL due to family problems.

4.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general 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 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)                                         AR20120021641



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ABCMR Record of Proceedings (cont)                                         AR20120021641



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