IN THE CASE OF:	  

		BOARD DATE:	  3 September 2013

		DOCKET NUMBER:  AR20130002366 


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 that his undesirable discharge be upgraded to a more favorable discharge.

2.  The applicant states that his undesirable discharge should be upgraded because he was told that it would be upgraded after 6 months.  He also states that he was involved in a motor vehicle accident after he turned himself in and should have been medically discharged because he was hit by a sergeant and sustained whiplash.

3.  The applicant provides a one-page statement explaining his application, and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 was inducted in Los Angeles, California on 26 August 1969 and he was transferred to Fort Ord, California to undergo his training.  He completed basic training and remained at Fort Ord for advanced individual training (AIT) as a radio operator.

3.  On 8 December 1969, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 1 December to 2 December 1969.

4.  On 11 December 1969, NJP was imposed against him for failure to go to his place of duty on 9 December 1969.  On 5 January 1970, he began committing a series of AWOL offenses.

5.  On 15 April 1971, charges were preferred against the applicant for being AWOL from 5 January to 20 January 1970, 29 January to 9 February 1970 and from 12 February 1970 to 12 April 1971.

6.  On 12 May 1971, at 0005 hrs, he was seen in the emergency room of the U.S. Army Hospital at Fort Ord after being in an automobile accident in Seaside, California.  He was hit in the rear.  The chronological record of medical care indicates that he was in no acute distress, that he had a sluggish effect and that he had been drinking.  He was advised to follow-up the next day on sick-call to check for a mild concussion.

7.  On 20 May 1971, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial.  In his request, he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also elected to submit a statement in his own behalf whereas he stated he desired to be undesirably discharged because he had over a year of bad time and had no desire to remain in the military.  He also stated that he was doing drugs to ease his tension and he had received NJP on at least four occasions.

8.  On 7 June 1971, he underwent a medical/physical examination in connection with his discharge action and he indicated that he was in “Perfect Health.” 
9.  The appropriate authority (a major general) approved his request for discharge on 22 June 1971 and directed that he be furnished an Undesirable Discharge Certificate.

10.  Accordingly, on 8 July 1971, he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with the issuance of an undesirable discharge.  He completed 7 months and 4 days of active service and had 464 days of lost time due to AWOL.  He had not completed his training and was not awarded a military occupational specialty.

11.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  An undesirable discharge was considered appropriate at the time.

	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.

13.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions unless the general court-martial convening authority finds that the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions or that other circumstances warrant disability processing instead of alternate administrative separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence or mitigating circumstances before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the repeated and extensive length of his absences and the lack of mitigating circumstances.  His service simply did not rise to the level of a general discharge or an honorable discharge.

4.  There is no evidence of record to show the applicant was unfit to perform his duties or that any injuries he received after he turned himself in were the cause of his going AWOL in the first place.

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)                                         AR20130002366



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ABCMR Record of Proceedings (cont)                                         AR20130002366



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