IN THE CASE OF:	  

		BOARD DATE:	    27 August 2013

		DOCKET NUMBER:  AR20130001725 


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 his discharge be upgraded to an honorable discharge (HD).

2. The applicant state he was a good Soldier, performed his job well, and has carried a burden of bad feelings around with him for years.  He now hopes someone will review his records and have a heart to see he was a good Soldier. He further states that he trained hard to become the Soldier he was and it only took one mistake to change it.

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 applicant enlisted in the Regular Army on 13 November 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  On 27 August 1975, court-martial charges were preferred against the applicant for being absent without leave (AWOL) during the period 1 November 1969 through 23 August 1975.

4.  On 27 August 1975, the applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an Undesirable Discharge (UD), and of the procedures and rights available to him.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

5.  In his request for discharge, the applicant indicated he understood that by requesting discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected not to submit a statement in his own behalf.  

6.  On 17 September 1975, the separation authority approved the applicant's request for discharge and directed the issuance of a UD Certificate and his reduction to private/E-1.  On 13 November 1975, the applicant was discharged accordingly.  He completed 2 months and 11 days of creditable active service and had 741 days of lost time due to AWOL and 1,379 days of AWOL subsequent to his normal expiration of term of service (ETS).

7.  On 14 March 1980, the Army Discharge Review Board (ADRB), after carefully reviewing the applicant's record of service and the issues he presented, found the applicant's discharge was proper and equitable and denied his appeal for a change to his discharge status.  

8.  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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions (UOTHC) discharge is normally considered appropriate.  At the time of the applicant’s discharge a UD was issued for members separating under this chapter.  

9.  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.

10.  Army Regulation 635-200, 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 argues that his discharge should be upgraded to an HD because he was a good Soldier and performed his job well was carefully considered.  However, there is insufficient evidence to support his claim

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service - 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.  

3.  In his request for discharge, the applicant clearly acknowledged the possibility of receiving a UD and that he understood the possible effects of receiving this type of discharge and after electing not to submit statements in his own behalf, he requested administrative discharge to avoid a possible punitive discharge.  The UD he received was normal and appropriate under the regulatory guidance.  

4.  Based on his almost 6-year period of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading the applicant's 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)                                         AR20130001725



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ABCMR Record of Proceedings (cont)                                         AR20130001725



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