IN THE CASE OF:	  

		BOARD DATE:  27 June 2013

		DOCKET NUMBER:  AR20120021743 


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 under other than honorable conditions discharge to an honorable or a general discharge.

2.  The applicant states he was 17 years old when he enlisted and he was having problems at home.  His mother was ill and he needed to take care of her and his brothers and sisters since his mother was a single parent.

3.  The applicant provides 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 11 August 1972.  He held military occupational specialty 11B (Light Weapons Infantryman).  He was assigned to the 1st Battalion, 501st Infantry, Fort Campbell, KY, on 20 December 1972.

3.  On 24 April 1973, he was reported as absent without leave (AWOL) from his unit.  On 27 April 1973, he was returned to military control at Fort Campbell.

4.  On 2 June 1973, he was reported as AWOL from his assigned unit and on 4 June 1973, he was returned to military control.

5.  On 7 July 1973, he was subsequently assigned to the U.S. Army Personnel Control Facility, Fort Leonard Wood, MO.

6.  He was reported as AWOL from his assigned unit from:

* 6 - 19 June 1973
* 28 June -  7 July 1973
* 8 August - 19 September 1973

7.  On 25 September 1973, court-martial charges were preferred against him for one specification each of being AWOL from:

* 24 - 27 April 1973
* 2 - 4 June 1973
* 28 June -  7 July 1973
* 8 August - 19 September 1973

8.  On 28 September 1973, he 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 Uniform Code of Military Justice (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 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

9.  In his request for discharge, he acknowledged he understood if the discharge request were 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.

10.  In a self-authored statement, dated 28 September 1973, he stated:

	a.  He could not adjust to the service due to many problems with himself and at home.  He was never a true Soldier and he would never be one.  His attitude toward the Army was poor and if he was forced to continue in the service things would get much worse.  The last time he was home his mother was trying to work to support the family but was hospitalized due to an accident a few years previously when she fractured her back.  She had very bad nerves and all this had upset her very much.

	b.  He felt he could no longer continue in the service because he could not perform the duties that were expected of him.  He had many problems to take care of and the service wasn't the way to do it.  If he was forced to return to duty, his status would not change.  He was almost forced to enter the service due to former civilian charges.  He did not want to enlist but the choice was the Army or the state penitentiary.  He disliked the service to the extent of doing crazy things and just wanted to get out.

11.  On 28 September 1973, his immediate commander recommended approval of the applicant’s request for discharge and recommended the issuance of an Undesirable Discharge Certificate.  The commander stated the applicant had demonstrated that he was unwilling to adjust to military service and further disciplinary or rehabilitative action would be futile.

12.  On 4 October 1973, his senior commander recommended approval of the applicant's request for discharge and recommended the issuance of an Undesirable Discharge Certificate.  He stated it was his opinion that the applicant would never be a productive Soldier; therefore, he should be discharged.

13.  On 15 October 1973, the separation authority, a brigadier general, approved the applicant's 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 and directed the issuance of an Undesirable Discharge Certificate.

14.  On 19 October 1973, he was discharged accordingly.  The DD Form 214 he was issued at the time shows 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 1 year of total active service with 70 days of time lost.

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.  On 17 March 1982, the Army Discharge Review Board disapproved his request for an upgrade of his discharge and determined he had been properly discharged.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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, 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 an individual who was discharged for the good of the Service.

	b.  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.

	c.  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 offenses 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.  The evidence of record shows he went AWOL on four separate occasions and at the time of his discharge he stated he had a poor attitude toward the Army, he could not perform the duties expected of him, and he wanted out of the Army.  Although at that time he stated his mother had been sick, there is no evidence of record and he did not provide any evidence that shows he requested assistance in dealing with any family problems while serving on active duty.

3.  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.

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.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20120021743



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ABCMR Record of Proceedings (cont)                                         AR20120021743



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