IN THE CASE OF:	  

		BOARD DATE:	    5 November 2013

		DOCKET NUMBER:  AR20130004999 


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 general discharge.

2.  The applicant states he had family problems, was going through a divorce and his wife was keeping him from seeing his kids.  He goes on to state that he felt he needed to defend himself in court.  He also states that his kids are all grownup now and productive members of society and his granddaughter just married an Iraq veteran. 

3.  The applicant provides no additional documents with his application.

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 initially enlisted in the Regular Army (RA) on 18 November 1959 for a period of 3 years.  He completed his training and served until he was honorably released from active duty (REFRAD) in the rank of E-2 on 6 November 1962 due to the expiration of his term of servicer (ETS).

3.  He again enlisted in the RA on 7 February 1963 for a period of 6 years and he was promoted to the pay grade of E-5 on 21 June 1966.  He served until he was placed on the Temporary Disability Retired List (TDRL) on 17 August 1967. 

4.  He was determined to be fit for duty and was removed from the TDRL effective 8 March 1973.  On 9 March 1973, he enlisted in the RA in the pay grade of E-5 for a period of 6 years.  He was transferred to Korea on 9 July 1973.  He departed Korea for a 30-day leave in the United States on 9 August 1973.

5.  On 8 September 1973, he was reported by his unit as being absent without leave (AWOL) and remained absent in a desertion status until he was apprehended by civil authorities in Louisiana on 4 March 1974.  He was turned over to military authorities at Fort Polk, Louisiana and he was transferred to Fort Hood, Texas where charges were preferred against him for the unauthorized absence.

6.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in St. Petersburg, Florida in 1989.  However, his records do contain a duly authenticated DD Form 214 which shows he was discharged under other than honorable conditions on 29 March 1974 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 6 months and 25 days of active service during his current enlistment and he had 177 days of lost time due to being AWOL.

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

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

	a.  Chapter 10 provides, in part, 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 undesirable discharge was considered appropriate at the time.

	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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that 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 before a trial by court-martial, the applicant voluntarily requested 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 are not sufficiently mitigating to warrant relief under the circumstances, especially given the length of his absence, his rank at the time and the fact that he was apprehended.  

4.  Accordingly, there appears to be no basis for granting the applicant an upgrade of his discharge to a general 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)                                         AR20130004999



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ABCMR Record of Proceedings (cont)                                         AR20130004999



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