IN THE CASE OF:	  

		BOARD DATE:	  14 November 2013

		DOCKET NUMBER:  AR20130005708 


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, in effect, an upgrade of his undesirable discharge to an honorable or a general discharge.

2.  The applicant states:

	a.  He had a contract dispute with the Army.

	b.  He was promised the rank of sergeant (E-5) when he completed his training; however, halfway through the training the government froze all pay and rank.

	c.  A contract where one party can change the conditions without the other party's consent is no contract at all regardless of the fine print.

	d.  When he contested the freeze, he was laughed at so he told "them" as far as he was concerned the contract was void.  He received more laughter so he left and went home.

	e.  A few weeks later, he was arrested and then taken to Fort Ord, California, where he was jailed.

	f.  He was told by a lawyer that if he wanted to get out of the military he should sign a form and write on it "I hate the Army."

	g.  He told the lawyer he did not hate the Army and he explained the reason why he felt he had been wronged.

	h.  He was told that if he did not sign the form he would sit in jail for a year waiting for a court-martial.

	i.  He signed the form under duress and he was released.

	j.  While he was in the Army he was laughed at, told he had an attitude, ordered to shovel snow, and whatever he said was spun to its worst possible connotation and thrown back in his face.

	k.  He believes that the events contributed to him finally signing the lawyer's forms because he was young and stressed out.

3.  The applicant provides a self-authored, unsigned 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 enlisted in the Army on 2 December 1971, in pay grade (E-1).  He completed training as a medical corpsman.  He was promoted to pay grade (E-2) on 15 February 1972 and he was promoted to pay grade E-3 on 30 June 1972.

3.  The facts and circumstances pertaining to the applicant's discharge are not available for review.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 1 year, 3 months, and 11 days of net active service this period.  He had 195 days of lost time due to being absent 

without leave (AWOL) from 22 January through 25 January 1973 and from 5 February through 14 August 1973.  He received an Undesirable Discharge Certificate.

4.  A review of the available records fails to show any contract between the applicant and the Army stating that he was be promoted to sergeant (E-5) upon completion of his training.

5.  His records do not show that he ever petitioned the Army Discharge Review Board for an upgrade of his discharge within the board's 15-year statute of limitations.

6.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 10 states 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 normally considered appropriate at the time of the applicant’s discharge.

   b.  Paragraph 3-7a states 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 states 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 contentions have been noted.  His supporting statement has been considered.

2.  There is no evidence in the available record, nor has the applicant submitted any evidence showing that he had a contract with Army officials to be promoted to sergeant (E-5) after he completed training.

3.  As previously stated, the facts and circumstances pertaining to the applicant's discharge are not available for review.  The available evidence suggests that he had two periods of AWOL for a total of 195 days.  Once charges were pending against, he submitted a request to be discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

4.  Based on the available evidence, the character of the applicant's discharge appropriately reflects his overall record service.

5.  In view of the foregoing, the applicant’s 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)                                         AR20130005708





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ABCMR Record of Proceedings (cont)                                         AR20130005708



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