IN THE CASE OF:	

		BOARD DATE:	  9 January 2014 

		DOCKET NUMBER:  AR20130005705 


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 to an honorable discharge and to change the narrative reason for his separation to "Convenience of the Government."

2.  The applicant states:

* clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge
* his average conduct and efficiency ratings/behavior and proficiency marks were good
* he was wounded in action
* he has been a good citizen since his discharge
* his record of nonjudicial punishment (NJP) indicates only isolated minor offenses
* his record of absence without leave (AWOL) indicates only isolated minor offenses
* personal problems impaired his ability to serve
* he faced racial discrimination which impaired his ability to serve
* he had medical and physical problems that impaired his ability to serve
* certain other problems impaired his ability to serve
* the punishment he received was too severe compared with today's standards
* the punishment was much worse than most people received for the same offense
* his discharge was based on many offenses but they were only minor offenses
* his command abused its authority when it decided to discharge him and decided to give him a bad discharge 
* he tried to apply for a hardship discharge but he was unfairly told to forget it
* his enlistment option was not satisfied or waived
* he was being considered for a physical disability discharge but he was unfairly denied one
* he should have received a medical discharge because he was not medically qualified to serve 

3.  The applicant provides a self-authored statement.

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's record shows he enlisted in the Regular Army on 
27 November 1970 for training in military occupational specialty (MOS) 63H (Automotive Repairman).  He completed basic combat training and he was reassigned to the U.S. Army Ordnance Center and School, Aberdeen Proving Ground, MD, for attendance at advanced individual training (AIT) in MOS 63H.  

3.  He accepted NJP on 2 March 1971 for failing to go at the time prescribed to his appointed place of duty.

4.  He departed AWOL on 12 April 1971 and returned to military control on 
15 April 1971.  On 16 April 1971, he accepted NJP for the AWOL offense.  

5.  He departed AWOL on 28 May 1971 and remained AWOL until 26 August 1971.

6.  A DA Form 2496 (Disposition Form), dated 2 June 1971, indicates that his conduct and efficiency ratings as of 28 May 1971 were unsatisfactory.  

7.  On 2 September 1971, court-martial charges were preferred against him for being AWOL from 28 May through 26 August 1971.

8.  On 7 September 1971, 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.  The separation authority approved his request for discharge and on 
6 October 1971, he was discharged accordingly.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with his service characterized as under conditions other than honorable.  He completed 7 months and 5 days of active duty service and accrued 95 days of lost time.  

11.  The applicant's available military records contain no documentation showing:

* he was wounded in action or that he served in a combat zone
* he faced racial discrimination
* medical and personal problems impaired his ability to serve
* his enlistment option was not satisfied or waived
* he was being considered for a physical disability discharge 



12.  He provides a self-authored statement in which he narrates his experiences in the Army from day one at basic combat training through AIT.

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

14.  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.

15.  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 to honorable has been carefully considered.  His contentions were noted; however, there is no evidence in his available military records, and he provided none, which support his contentions.  
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.

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 record of indiscipline during his brief period of military service includes NJP on two occasions, court-martial charges for being AWOL, and 95 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
      B
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)                                         AR20130005705



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ABCMR Record of Proceedings (cont)                                         AR20130005705



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