IN THE CASE OF:	  

		BOARD DATE:	  27 June 2013

		DOCKET NUMBER:  AR20120021755 


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 he was having severe family issues.  His wife was hospitalized for several years during this time.  He was emotionally distraught which led to repeat offenses of being absent without leave (AWOL).  Due to his wife's critical health condition, it was imperative that he support his family.  After his discharge he was able to gain employment and for 7 years he held a Secret clearance which was later upgraded to a Top Secret clearance.  This shows his work ethic and reliability that was not displayed at the time of his enlistment.

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 was inducted into the Army of the United States on 29 April 1968 with a moral waiver for induction.  He did not complete advanced individual training; therefore, he was not awarded a military occupational specialty.

3.  On 5 September 1968, he was convicted by a special court-martial of one specification of being AWOL from 1 May to 12 August 1968.  He was sentenced to confinement at hard labor for 1 month and forfeiture of pay for 1 month.

4.  On 11 September 1968, the convening authority suspended the sentence of 1 month confinement.

5.  On 11 March 1969, the convening authority vacated that suspension and ordered the confinement duly executed.

6.  On 13 March 1969, he was convicted by a special court-martial of one specification of being AWOL from 22 September 1968 to 15 February 1969.  He was sentenced to confinement at hard labor for 5 months and forfeiture of pay for 5 months.

7.  He was again reported as AWOL on 5 June 1969 and he was dropped from the rolls of his organization on 5 July 1969.

8.  A DD Form 458 (Charge Sheet), dated 5 September 1969, was issued by the Commander, U.S. Army Special Processing Battalion.  The applicant was charged with being AWOL from 6 June to on or about 30 August 1969.

9.  On 9 September 1969 after consulting with counsel, the applicant requested discharge for the good the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10.  He acknowledged he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate and the results of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

10.  On 22 September 1969, the applicant's company commander recommended approval of the applicant's discharge.  The company commander and Assistant Administrative Officer stated that during the applicant's current enlistment he had a total of 95 days of lost time.  During the interview with the applicant, the applicant was very positive that he wanted to get out of the service.  He was sure the applicant would never complete his service and he did not feel any attempt at rehabilitation of the applicant would be effective.

11.  On 23 October 1969, the appropriate separation authority approved the applicant's request under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate.

12.  On 31 October 1969, he was discharged accordingly.  He completed 2 months and 9 days of net active service with 480 days of lost time.

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

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

	a.  Chapter 10 of the version in effect at the time provided that a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An Undesirable Discharge Certificate would normally be furnished to 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.  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 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 applicant's request for an upgrade of his undesirable discharge was carefully considered.  However, the evidence of record shows he was twice convicted by a special court-martial of lengthy periods of AWOL.  Upon his last return from AWOL and after consulting with counsel, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence or to submit a statement in his own behalf.  

2.  He was charged with the commission of an offense with a punitive discharge. Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

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)                                         AR20120021755



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ABCMR Record of Proceedings (cont)                                         AR20120021755



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