IN THE CASE OF:	  

		BOARD DATE:	  3 December 2013

		DOCKET NUMBER:  AR20130005983 


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 honorable.

2.  The applicant makes no additional statements.

3.  The applicant provides:

* a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a news article, dated 17 June 2009
* four character reference statements

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 U.S. Army Reserve (USAR) on 17 June 1971 and he was ordered to active duty for his initial active duty training on 
12 November 1971.

3.  Item 44 (Time Lost) of his DA Form 20 (Enlisted Qualification Record) shows he had lost time for the following periods:

* on 9 January 1972, 1 day of being absent without leave (AWOL)
* from 4 to 9 February 1972, 6 days in confinement

4.  On 11 January 1972, court-martial charges were preferred against him for being AWOL from on or about 9 January to 10 January 1972 and for disobeying a lawful command from a commissioned officer.

5.  On 24 January 1972, 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.

6.  He elected to submit a statement on his own behalf in which he stated "if you [the applicant] keep going AWOL you make the Army come and get you and put you in the stockade, which the Army has to spend a lot of time, money and manpower into each case.  I think the Army can save much time and money by my discharge."

7.  His chain of command recommended approval with an undesirable discharge.

8.  On 9 February 1972, the battalion commander interviewed the applicant's parents who came to visit their son in the stockade at Fort Ord, CA.  The applicant's commander informed the applicant's parents that the applicant appeared steadfastly opposed to service in the Army under any conditions and he had refused to train at all.  The applicant told his parents that he would go AWOL to avoid any duty and his parents were in agreement that he should be discharged.  The commander stated the "Army would be wasting man-hours and dollars on any attempt to rehabilitate the applicant or to attempt to alter an outlook on life which his parents have evidently supported for years."  In his judgment, the applicant would never become a useful or productive member of the U.S. Army.



9.  On 16 February 1972, the appropriate approval authority disapproved the applicant's request for discharge.

10.  On 2 March 1972, his brigade commander requested that the approval authority reconsider the applicant's request for discharge based on additional information received from the battalion commander.  He stated the applicant had been placed on excess leave on 10 February 1972 and it would be counter- productive to return the applicant to military control.

11.  On 9 March 1972, the appropriate approval authority directed that the applicant 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 Certificate.  On 22 March 1972, he was discharged accordingly.

12.  His DD Form 214 shows he completed 3 months and 29 days of active service during the period under review with 7 days of lost time.

13.  The applicant provided a copy of a news article titled "Former local youth coach still inspires from wheelchair."  The article discusses how the applicant was paralyzed in an automobile accident in 1972 and despite his physical limitations he became a football coach, as well as, a mentor to many young athletes.

14.  In addition, the applicant provided four character reference statements that attest to his work ethic, mentorship, and community service. 

15.  There is no indication in his records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  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 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 an upgrade of his 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, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the Uniform Code of Military Justice.  Further, in his request for discharge he clearly stated that he was unwilling to continue his training and that he would continue to avoid training by going AWOL.  This statement shows the applicant had no desire to continue his military service.

3.  His post-service accomplishments are noteworthy and it is evident the applicant has made significant contributions to his community.  Nevertheless, based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The record shows all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20130005983



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ABCMR Record of Proceedings (cont)                                         AR20130005983



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