IN THE CASE OF:	  

		BOARD DATE:	  8 October 2013

		DOCKET NUMBER:  AR20130003803 


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 an upgrade of his undesirable discharge.

2.  The applicant states he applied for a hardship discharge at Fort Jackson, SC, for being an only son and because his mother was unable to take care of herself, but he never received a response.  After being there not doing anything, the man/sergeant in charge of the barracks told him to just go home and that he would call him.  He left, went home, and started working to support his mother.  Approximately a year later, military police picked him up and took him to Fort Benning, GA.  He was told to sign some papers and he was then sent home with an undesirable discharge.

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 was inducted into the Army of the United States on 14 October 1970.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 13A (Field Artillery Basic).  He also completed the Basic Airborne Course.

3.  Subsequent to completion of training, he was reassigned to the Overseas Replacement Station, U.S. Army Personnel Center, Fort Jackson, SC, for movement overseas.

4.  On 5 May 1971, he was absent without leave (AWOL) from the replacement station and he was dropped from the Army rolls as a deserter on 26 May 1971.  He was apprehended by military authorities on 11 July 1972.  He was assigned to the Personnel Control Facility, Fort Bragg, NC.

5.  On 13 July 1972, his command preferred court-martial charges against him for one specification of being AWOL from 5 May 1971 to 10 July 1972.

6.  On 25 July 1972, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he 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.  In his request for discharge he indicated:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* he acknowledged he understood that if his discharge request were approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he understood 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 on his own behalf

7.  On 28 July and 8 August 1972, his immediate and intermediate commanders recommended approval with the issuance of an Undesirable Discharge Certificate.  The immediate commander stated he personally interviewed the applicant and the applicant stated:

* he was aware of the nature of the interview and the consequences of the undesirable discharge
* he desired elimination from the service and he was unable to adjust to military service
* he wanted to return home to take care of his mother following the death of his father
* he had no desire to attempt to adapt himself to performing military duties and he wanted to leave as soon as possible

8.  On 14 August 1972 consistent with the chain of command's recommendations, the separation authority approved the applicant's request for voluntary discharge for the good of the service in lieu of trial by court-martial in accordance with Army Regulation 635-200, chapter 10, and directed his reduction to the lowest enlisted grade and receipt of an Undesirable Discharge Certificate.

9.  On 23 August 1972, the applicant was accordingly discharged.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 7 months and 28 days of active service and he had over 432 days of lost time.

10.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

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

	b.  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.

	c.  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 request for an upgrade of his undesirable discharge based on his prior request for a hardship discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant was charged with the commission of an offense punishable under the UCMJ 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.  The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  There is no evidence in the applicant's records and he provides none to show he requested a hardship discharge or that his chain of command denied him such discharge.

4.  Nothing in the applicant's records shows he was forced to choose the discharge.  He was AWOL by choice.  Upon being interviewed by his commander, he clearly stated he could not adapt to military life and wanted to go home.  He could have elected a trial by a court-martial if he felt he was innocent of the charges or if he had extenuating circumstances.

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his 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 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)                                         AR20130003803



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ABCMR Record of Proceedings (cont)                                         AR20130003803



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