IN THE CASE OF:	  

		BOARD DATE:	  3 September 2013

		DOCKET NUMBER:  AR20130001747 


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 to general under honorable conditions.

2.  The applicant states he volunteered to serve in the Army.  The Army “has been and always will be instilled in me by sacrifice and injustice.”  He was maliciously attacked by a superior when under direct orders by the post commanding officer.

	a.  He remembers donating blood one day and the commanding general giving an order to excuse Soldiers who donated blood from their duties.  When he returned to the barracks, his lieutenant ordered him to report for firing duty.  He reminded the lieutenant of the post commander's directive, but the lieutenant did not care.  The lieutenant flipped his bunk upside down causing him to fall to the floor.  The lieutenant also threw his locker into the middle of the barracks sending his property all over the floor.  When he got to his feet, the lieutenant aggressively rushed him as if to strike him in the face.  Being dazed, he took a wild swing in self defense to protect himself from further injury.  These events occurred prior to his approved Christmas leave.  He remembers his drill instructor telling him they would let him have his leave and he would be court-martialed when he got back.  He decided not to return from leave.  However, he did turn himself in 9 or 13 months later.

	b.  He can't be more certain on times and dates.  He had an automobile accident in 1997 wherein he suffered a head injury.  His memory has not been the same since.  Nevertheless, he believes his actions warranted a general discharge, not an undesirable discharge.  He promised his father, who has since passed away, that he would try to make up for his failure to serve his country.  He is now working with a veterans' group to help other veterans, donating his time and skills.

3.  The applicant provides a self-authored statement with an acknowledgement from the Chief Executive Officer of Champion American Veterans, Incorporated.  He indicates he attached medical release papers showing his blood type and disability and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); however, these documents were not included with his application.

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 18 June 1970.  He completed basic combat training at Fort Lewis, WA, on or about 21 August 1970 and he was reassigned to Fort Gordon, GA, for training in a communications military occupational specialty (MOS).

3.  It appears he did not complete MOS training for the communications specialty at Fort Gordon and he was reassigned to Fort Sill, OK, for training in an artillery specialty on 20 November 1970.

4.  The applicant's DA Form 20 (Enlisted Qualification Record) reveals a history of being absent without leave (AWOL), being dropped from the rolls (DFR) of the Army as a deserter, and being confined as follows:

* 4 January to 1 February 1971 – AWOL
* 2 February to 30 May 1971 – AWOL
* 14 June to 19 June 1971 – AWOL
* 20 June 1971 to 9 February 1972 – DFR
* 10 February to 6 March 1972 – confined

5.  The complete facts and circumstances, including the court-martial charge sheet and separation packet, are not available for review with this case.  However, his records contain a duly-constituted DD Form 214 that shows:

	a.  He was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 20 March 1972 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, and issued a DD Form 258A (Undesirable Discharge Certificate).

	b.  He completed 7 months and 13 days of active military service and he had 414 days of lost time from 4 January to 30 May 1971 (147 days) and from 14 June 1971 to 6 March 1972 (267 days).

6.  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.

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

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	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 record is void of the specific facts and circumstances surrounding his discharge action.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

2.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that 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.  There is no evidence in his record and he provides none to corroborate his contention that the lieutenant attacked him and that is why he was AWOL on multiple occasions.

4.  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.  Therefore, there is no basis for granting him the requested relief.

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)                                         AR20130001747



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ABCMR Record of Proceedings (cont)                                         AR20130001747



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