IN THE CASE OF:	  

		BOARD DATE:	 8 August 2013 

		DOCKET NUMBER:  AR20130000363 


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, in effect, an upgrade of his undesirable discharge.

2.  The applicant states, in effect, his discharge was based on his sexual orientation and the current views on sexual orientation are different today.  He served his country honorably and proudly and received a commendation from Natick Laboratories for duty above and beyond what was expected.

3.  The applicant provides no additional evidence.

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 enlisted in the Regular Army on 29 September 1971.  He completed training and was awarded military occupational specialty 71B (Clerk Typist).

3.  The complete facts and circumstances of the applicant's separation are not available for review with this case.

4.  Special Court Martial Order Number 282 issued by Headquarters and Headquarters Command, U.S. Army Training Center, Infantry, Fort Ord, CA, dated 16 October 1972, shows the applicant pled guilty and was found guilty of being absent without authority from on or about 19 June 1972 until on or about 2 September 1972.

5.  A DA Form 3835 (Notice of Unauthorized Absence from U.S. Army) and DA Form 188 (Extract of Morning Report) show the applicant was absent without leave (AWOL) on 13 December 1972 and he was dropped from the unit rolls on 15 January 1973.

6.  On 13 June 1973, the applicant was apprehended by civil authorities and returned to military control.

7.  On 12 July 1973, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year, 1 month, and 3 days of creditable active military service.  His DD Form 214 also shows he had 251 days of lost time.

8.  His record is void of documentation showing sexual orientation was a factor in his discharge or the characterization of his service.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

	a.  Chapter 10 provides 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, a discharge under other than honorable conditions is normally considered appropriate.

	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 applicant's records are void of the specific facts and circumstances that led to his discharge.  However, his records contain a DD Form 214 that shows he was discharged under other than honorable conditions on 12 July 1973 under the provisions of Army Regulation 635-200, chapter 10.

2.  The issuance of a discharge under the provisions of Army Regulation 
635-200, chapter 10, required the applicant to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant provided no evidence that would indicate anything to the contrary.  Further, it is presumed that the applicant's discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an upgrade of his 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 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)                                         AR20130000363



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ABCMR Record of Proceedings (cont)                                         AR20130000363



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