BOARD DATE:	  27 August 2013

		DOCKET NUMBER:  AR20130001382 


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. 

2.  The applicant states he was lied to by a recruiter.  He sent all the records to Washington under the [Former President] Nixon Administration when he was "letting them come home from Canada."

3.  The applicant does not provide any 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 applicant's records show he enlisted in the Regular Army for 3 years on 29 July 1968.  He was assigned to Fort Dix, NJ, for completion of training. 
3.  On 8 August 1968, he departed his training unit in an absent without leave (AWOL) status and on 7 September 1968, he was dropped from the Army rolls as a deserter.  He returned to military control on 18 November 1968.  

4.  On 26 November 1968, he pled guilty and was convicted by a special court-martial of one specification of AWOL from 8 August to 18 November 1968.  The court sentenced him to a forfeiture of pay and restriction.  The convening authority approved his sentence on 2 December 1968.  

5. On 23 December 1968, he again departed his unit in an AWOL status and he was immediately dropped from the rolls as a deserter.  He returned to military control on 20 April 1969.  

6.  On 5 May 1969, he pled guilty and was convicted by a special court-martial of one specification of AWOL from 23 December 1968 to 20 April 1969.  The court sentenced him to confinement at hard labor for 6 months.  The convening authority approved his sentence on 13 May 1969.  

7.  On 3 August 1969, he again departed his unit in an AWOL status and on the same day, he was dropped from the Army rolls as a deserter.  He returned to military control on 30 October 1969. 

8.  On 23 November 1969, his command preferred court-martial charges against him for one specification of being AWOL from 3 August to 30 October 1969. 

9.  On 25 November 1969, the applicant 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 discharge or a 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 for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge, he acknowledged he:

* was making this request on his own free will and he had not been subjected to any coercion whatsoever
* understood that if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate
* he acknowledged he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he acknowledged he understood he could expect to encounter substantial prejudice in civilian life
* he elected not to submit a statement on his own behalf

10.  On 26 November 1969, his intermediate and senior commanders recommended approval with the issuance of an Undesirable Discharge Certificate.  

11.  On 3 December 1969, consistent with the applicant's chain of command's recommendations, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 10 December 1969. 

12.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged on 10 December 1969 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial with an under other than honorable conditions characterization of service.  He completed a total of 3 months and 6 days of creditable active military service and he had 402 days of lost time recorded on his DD Form 214.

13.  On 28 February 1978, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  Accordingly, the ADRB denied his petition for an upgrade of his discharge. 

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, at the time an under other than honorable conditions discharge was normally considered appropriate.

	a.  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
	b.  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 show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He had an opportunity to make a statement when he requested discharge and elected not to do so.  Further, his discharge accurately reflects his overall record of service.

2.  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 meritorious.  The applicant's service reveals failure to complete basic combat training or advanced individual training, three instances of lengthy AWOL, two convictions by courts-martial, and a voluntary request for discharge to avoid yet another court-martial conviction. 

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 also renders 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)                                         AR20130001382





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ABCMR Record of Proceedings (cont)                                         AR20130001382



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