IN THE CASE OF:	  

		BOARD DATE:	  21 November 2013

		DOCKET NUMBER:  AR20130006003 


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.

2.  The applicant states he is asking for forgiveness for the hasty judgment that he used at age 21.  He had just gotten married and he was transferred to Fort Belvoir, VA.  His spouse was pregnant with their first child and he asked his company commander for a 4-day pass to go home and help her find a place to live (but he was denied); he realizes that he was wrong for leaving.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and two letters.

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 was inducted into the Army of the United States on 18 January 1971 at age 20 year and he held military occupational specialty 12C (Bridge Specialist).  On 9 June 1971, he was assigned to the 902nd Engineer Company, 11th Engineer Battalion, Fort Belvoir, VA.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows on:

* 8 July 1971, for being absent without leave (AWOL) from his assigned unit from 21 June to 6 July 1971
* 28 December 1971, for absenting himself from his appointed place of duty
* 29 January 1972, for committing an assault on a Soldier with a dangerous weapon and for being AWOL from 25 to 26 January 1972
* 3 February 1972, for failing to report at the prescribed time to his appointed place of duty on two separate occasions 

4.  On 10 February 1972, he was reported AWOL from his assigned unit and on 22 February 1972, he was dropped from the rolls as a deserter.

5.  On 6 July 1972, he was apprehended and returned to military control.  He was assigned to the Personnel Control Facility (PCF), Fort Riley, KS.

6.  On 16 July 1972, he was reported as AWOL from his assigned unit and on 19 July 1972 he was returned to military control at the PCF, Fort Riley, KS.

7.  On 24 July 1972, court-martial charges were preferred against him for one specification each of being AWOL from 10 February to 5 July 1972 and from 16 to 19 July 1972.

8.  On 25 July 1972, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.

9.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life. 

10.  On 27 July 1972, his immediate and senior commanders recommended approval of his request for discharge with the issuance of an Undesirable Discharge Certificate.  

11.  On 4 August 1972, he was reported AWOL from his assigned unit.

12.  The separation authority subsequently approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 10 August 1972, he was discharged accordingly while in an AWOL status. 

13.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10 by reason of for the good of the service - in lieu of court-martial (separation program number 246) with an under other than honorable conditions characterization of service.  He completed 1 year and 28 days of net active service and had 175 days of lost time due to being AWOL.

14.  On 6 March 1975 and 11 February 1981, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined he had been properly and equitably discharged.

15.  The applicant provides a letter, dated 31 January 2013, wherein it verifies that he had been living at the Emmanuel House, Detroit, MI, since 3 January 2013 and was in the Emmanuel House Recovery Program. 

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment included 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.  At the time, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

17.  Army Regulation 635-200, 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.
18.  Army Regulation 635-200, 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 evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  

2.  As such, he voluntarily requested a discharge to avoid trial by a court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The applicant contends that his discharge should be upgraded because he was young and made the wrong decisions.  Records show that he was almost 22 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  He also contends he went AWOL because he was denied a 4-day pass; however, that is not a justifiable reason for going AWOL and does not account for his numerous periods of AWOL.

4.  His record of service shows he received NJP on four occasions for being AWOL on two separate occasions, leaving his place of duty, failing to report for duty on two occasions, and for assaulting another Soldier.  He again went AWOL two more times.  He had a total of 175 days of lost time due to being AWOL and he was in an AWOL status at the time of discharge.  

5.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or 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)                                         AR20130006003



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ABCMR Record of Proceedings (cont)                                         AR20130006003



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