IN THE CASE OF:	  

		BOARD DATE:	  8 October 2013

		DOCKET NUMBER:  AR20130003444 


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 honorable.

2.  The applicant states:

	a.  Clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge.

	b.  Under current standards, he would not have received the type of discharged he received.

	c.  His average conduct and efficiency ratings, behavior, and proficiency were good.

	d.  He received awards, decorations, letters of recommendation, and he had combat service.  

	e.  His record of promotions shows he was generally a good service member and there were also other acts of merit.

	f.  He had a prior honorable discharge and he has been a good citizen since his discharge.

	g.  His ability to serve was impaired because of marital and family problems and his use of alcohol.
	h.  The punishment he received was too severe compared with today's standards and it was much worse than most people received for the same offense.

	i.  He tried to serve and wanted to serve but just could not or was not able to serve.

3.  The applicant provides a DD Form 214 (Report of Separation from Active Duty).

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 into the Army on 9 July 1970 and he was awarded military occupational specialty 91E (Dental Specialist) upon completion of the required training.

3.  He served in Vietnam from 30 June 1971 to 31 March 1972.

4.  He was honorably released from active duty on 3 April 1972.  His DD Form 214 for this period of service shows he was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, and the Vietnam Campaign Medal with Device 1960.  

5.  On 5 April 1972, he enlisted for a period of 6 years.  

6.  DA Forms 4187 (Personnel Action) show he departed absent without leave (AWOL) on 8 January 1975 and that he was apprehended by civilian authorities on 12 August 1975.

7.  On 18 August 1975, court-martial charges were preferred against him for the AWOL offense.  
8.  On 19 August 1975, he consulted with legal counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial due to charges being preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

9.  He acknowledged in his request that he understood the elements of the offenses charged and that he was guilty of at least one of the charges against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharged.  He also acknowledged that he could be issued an under other than honorable conditions discharge and that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws. He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a under other than honorable conditions discharge.

10.  On 25 August 1975, the separation authority approved his request for discharge and directed his reduction to private/E-1 and issuance of an Undesirable Discharge Certificate.  On 17 September 1975, he was discharged accordingly.  His DD Form 214 for this period of service shows he accrued 216 days of lost time and that he received an under other than honorable conditions characterization of service.  

11.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgraded of his discharge.  

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10, of the regulation 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 VA 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.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separation), the version currently in effect, provides that a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  It further provides in:

	a.  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.

	b.  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's contention that his undesirable discharge should be upgraded has been carefully considered.  

2.  The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

3.  His voluntary request for discharge 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 laws and regulations. There is no indication the request was made under coercion or duress.

4.  His prior honorable term of service and his service prior to the AWOL offense were noted; however, his record of indiscipline includes court-martial charges for being AWOL and 216 days of lost time.  Based on this record of indiscipline and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  He contends that his punishment was too severe in comparison with today's standards.  However, the current version of Army Regulation 635-200 provides that an under other than honorable conditions discharge is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial.  Therefore, his contention appears to be without merit.

6.  Based on the foregoing, there is no basis to grant 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 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)                                         AR20130003444



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ABCMR Record of Proceedings (cont)                                         AR20130003444



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