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ARMY | BCMR | CY2013 | 20130002577
Original file (20130002577.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	    26 September 2013

		DOCKET NUMBER:  AR20130002577 


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 to honorable.

2.  The applicant states he never had any adverse actions against him to warrant anything but an honorable discharge.  He was in disbelief when he discovered that his discharge was under conditions other than honorable.   The dates of service on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) are incorrect.  

3.  The applicant provides a copy of his 14 October 1969 DD Form 214. 

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 for 3 years on 16 July 1965.  He completed training as an infantryman, was stationed in Korea, and progressed to pay grade E-4 and was appointed an acting sergeant in October 1966.   

3.  He was reassigned to the United States and assigned as a drill sergeant.  On 20 July 1967, he was honorably discharged to reenlist and issued a DD Form 214.  The next day he reenlisted for a period of 3 years and assignment to his present duty station.  

4.  The applicant was absent without leave (AWOL) from 16 October 1967 to 12 September 1969. 

5.  When charges for that AWOL were preferred, the applicant consulted with counsel.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He stated he understood the charges against him and admitted he was guilty of at least one offense for which a punitive discharge was authorized.  He acknowledged he understood he could receive a discharge under other than honorable conditions and be issued an Undesirable Discharge Certificate.  He indicated he understood he could be deprived of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Veterans Administration.  He also acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge.

 6.  The chain of command recommended approval of the applicant's request for discharge.  The separation authority approved the request and directed the issuance of an Undesirable Discharge Certificate.

7.  On 14 October 1969, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10.  His service was characterized as under conditions other than honorable.  He had 3 months and 19 days of creditable active service and approximately 700 days of lost time during this second enlistment.

8.  There is no indication the applicant ever applied to the Army Discharge Review Board to review his discharge. 

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides in:

	a.  chapter 10 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, an under other than honorable conditions discharge is normally considered appropriate.

	b.  paragraph 3-7a 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.

	c.  paragraph 3-7b 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 clearly served honorably until shortly after he reenlisted.  He clearly demonstrated the capability for honorable service.

2.  His request for discharge under the provisions of Army Regulation 635-200, chapter 10, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid a trial by court-martial and the punitive discharge that he might have received.

3.  The administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors.

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  The applicant has submitted no evidence or convincing argument in support of his implied claim that he never did anything wrong.  There is no basis for upgrading the 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)                                         AR20130002577





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ABCMR Record of Proceedings (cont)                                         AR20130002577



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