IN THE CASE OF:	  

		BOARD DATE:	  3 December 2013

		DOCKET NUMBER:  AR20130005882 


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 general under honorable conditions.

2.  The applicant states he was constantly berated and intimidated by "the powers that be" at the time of his enlistment.

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's records show he enlisted in the Regular Army on 5 September 1969.  He completed basic combat training and he was subsequently reassigned to Fort Lee, VA, for advanced individual training.

3.  On 4 January 1970, he departed his training unit in an absent without leave (AWOL) status.  He returned to military control on 18 January 1970.

4.  On 24 February 1970, he was convicted by a special court-martial of one specification of AWOL from 4 to 18 January 1970.  The court sentenced him to confinement at hard labor for 2 months and reduction to the lowest enlisted grade.  The convening authority approved his sentence on 24 February 1970.

5.  On 17 April 1970, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.

6.  On 9 July 1970, he was again convicted by a special court-martial of two specifications of AWOL from 18 to 27 May 1970 and from 1 to 15 June 1970.  The court sentenced him to confinement at hard labor for 30 days and forfeiture of $50.00 pay per month for 2 months.  The convening authority approved his sentence on 3 August 1970.

7.  On 30 October 1970, he again departed his unit in an AWOL status and he was dropped from the Army rolls as a deserter on 1 December 1970.  He returned to military control on or about 27 December 1970.

8.  It appears his chain of command preferred court-martial charges against him for his last period of AWOL.

9.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  However, his records contain:

	a.  Headquarters, Fort George G. Meade, MD, Special Orders Number 21, dated 29 January 1971, ordering his discharge under other than honorable conditions effective 2 February 1971 in accordance with Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 10; and

	b.  a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showing he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 2 February 1971 under the provisions of Army Regulation 635-200, chapter 10, with the issuance of an Undesirable Discharge Certificate.  This form also shows he completed 1 year, 2 months, and 6 days of total active service with multiple periods of lost time.

10.  On 7 February 1978 after careful consideration of his military record and all other available evidence, the Army Discharge Review Board (ADRB) determined he was properly discharged.  Accordingly, his request for a change in his discharge was denied.

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, the 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 to an individual who was discharged for the good of the service.

	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.  The applicant contends his undesirable discharge should be upgraded.

2.  The applicant's records are void of the specific facts and circumstances surrounding his discharge.  It appears that he 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 for the good of the service in lieu of trial by court-martial.

3.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed that his discharge accurately reflects his overall record of service.

4.  His contention that he was berated and intimidated by others is not supported by any evidence.  His service records reflect a period of military service marred with misconduct that included multiple periods of AWOL, desertion, two court-martial convictions, and one Article 15.

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 rendered his service unsatisfactory.  Therefore, he is not entitled to a general discharge under honorable conditions.

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)                                         AR20130005882



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ABCMR Record of Proceedings (cont)                                         AR20130005882



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