IN THE CASE OF:	  

		BOARD DATE:	    8 August 2013

		DOCKET NUMBER:  AR20130001302


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 upgrade of his discharge. 

2.  The applicant states in effect, he was absent without leave (AWOL) due to taking care of his homeless mother who had medical conditions.  

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* Documents which indicate his mother’s debt and medical issues

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 1 June 1972.  He completed the training requirements and was awarded military occupational specialty 13A (Field Artillery Basic).  The highest rank he attained while serving on active duty was Private First Class/pay grade E-3. 

3.  On 4 October 1973, charges were preferred against the applicant for being AWOL during the periods 7 July 1973 through 20 August 1973 and 25 August 1973 through 27 September 1973.

4.  On 5 October 1973, after consulting with counsel, the applicant voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life.  

5.  The applicant submitted a statement on his behalf addressing his and his widowed mother’s indebtedness as well as his only-child status.  His statement also referred to medical and financial documents that show his mother had a medical condition prohibiting her from working. 

6.  The appropriate authority approved his request and on 19 October 1973, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, under honorable conditions.  His DD Form 214 issued shows he completed 1 year, 2 months, and 4 days of creditable active service with 77 days of lost time due to being AWOL.

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

8.  There is no evidence in the available records that indicate the applicant requested assistance with a family medical or financial issue.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that his discharge be upgraded was carefully considered and it was determined there is insufficient evidence to support this request.

2.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  Discharges under this chapter are due to a voluntary request 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.  Based on the applicant’s record of 77 days of AWOL, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

4.  There is no evidence in the available records that indicate the applicant requested and/or was denied assistance with a family medical or financial issue.

5.  Based on the foregoing, the applicant is not entitled to 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 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)                                         AR20120011232



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130001302


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1