IN THE CASE OF:	  

		BOARD DATE:	    24 October 2013

		DOCKET NUMBER:  AR20130004170 


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 discharge under other than honorable conditions to honorable.

2.  The applicant states that he received an honorable discharge when he left the U.S. Army Reserve (USAR) prior to him enlisting in the Regular Army.  He contends that he completed his punishment and had been placed in charge of prisoners until his release from active duty.  He feels that his discharge should have been honorable since he was allowed to continue serving his country.

3.  The applicant provides:

* DA Form 24 (Service Record)
* DA Form 2627-1 (Record of Proceeding Under Article 15, Uniform Code of Military Justice (UCMJ))
* three DA Forms 20 (Enlisted Qualification Record)
* two DD Forms 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 completed an honorable period of active service in the Army National Guard (ARNG) from 24 August 1964 to 17 February 1965.

3.  He enlisted in the Regular Army on 13 May 1969 and served in military occupational specialty 11B (light weapons infantryman). 

4.  Item 44 (Time Lost) of his DA Form 20 shows he was absent without leave (AWOL) for the following periods:

* 4 August to 16 August 1969, 13 days
* 6 September 1969 to 13 January 1970, 129 days

5.  On 15 January 1970, court-martial charges were preferred against him for being AWOL from on or about 6 September 1969 to on or about 13 January 1970.

6.  On 27 March 1970, after consulting with legal counsel, he voluntarily requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  He was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Federal and State veterans benefits.  He elected not to submit a statement on his own behalf.

7.  On 20 April 1970, the appropriate authority directed that he be reduced to pay grade E-1 and approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with the issuance of an under other than honorable conditions discharge.  On 28 April 1970, he was discharged accordingly.

8.  His DD Form 214 shows he completed 6 months and 26 days of active duty service during the period under review.

9.  On 14 July 1981, the Army Discharge Review Board denied his request to upgrade his discharge. 

10.  The applicant provided extracts from his military personnel record.  His assignment history is void of documentation showing he supervised prisoners during his period of service.

11.  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, 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 an individual who was discharged for the good of the Service.

	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 requests upgrade of his discharge under conditions other than honorable to an honorable discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with being AWOL (142 days), an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  He elected not to submit a statement in his own behalf describing any mitigating circumstances he wanted the separation authority to consider in making a decision on his request.  The record shows all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

3.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

4.  In view of the above, his request should be denied.

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)                                         AR20130004170





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ABCMR Record of Proceedings (cont)                                         AR20130004170



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