IN THE CASE OF:	  

		BOARD DATE:  19 November 2013

		DOCKET NUMBER:  AR20130006283 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states that he was a young, naïve, dysfunctional, and depressed boy who had learning disabilities that hindered his ability to follow written instructions.  He goes on to state he was told he was being sent to Vietnam and prepared himself for such; however, he was subsequently told he was being sent to Germany as a supply clerk instead and he did not want that.  He wanted to go to Vietnam with his friends to fight the bad guys; however, he was told his option was either go to Germany or be discharged under other than honorable conditions.  He further states at the time he was told his discharge would be automatically upgraded after a few years but it has never occurred.

3.  The applicant provides a copy of his DD Form 214 and a page from his enlistment contract.

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.  On 10 September 1969, the applicant enlisted in the U.S. Army Reserve (USAR) for a period of 6 years.  He was ordered to active duty training (ADT) on 16 October 1969.  He completed his basic training and advanced individual training as a clerk typist.  He was honorably released from ADT on 17 February 1970 and he was returned to his USAR unit.

3.  On 22 September 1970, orders were published ordering him to active duty (involuntarily) for a period of 19 months and 29 days with a reporting date to the Army Reception Station at Fort Dix, NJ on 30 October 1970, for assignment to the 21st Replacement Battalion in Germany.

4.  The applicant did not report as ordered and he remained absent in desertion until he was returned to the military authorities on 3 February 1972.  He again went absent without leave (AWOL) on 1 April 1972 and he remained absent in desertion until he was returned to military control on 14 September 1972.  Subsequently, charges were preferred against him on 22 September 1972 for the two periods of AWOL.

5.  On 28 September 1972, after consulting with defense counsel, the applicant submitted a request for 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.  In his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged he understood he could receive a discharge under other than honorable conditions and be furnished an Undesirable Discharge Certificate, and that he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.

6.  The appropriate authority (a major general) approved his request for discharge and directed the applicant be furnished an Undesirable Discharge Certificate and be reduced to the rank/grade of private (PV1)/E-1.

7.  Accordingly, on 30 November 1972, 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 with an undesirable discharge.  He accrued 731 days of time lost due to AWOL/desertion.

8.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

9.  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 certificate 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's voluntary request for separation 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 regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence or mitigating circumstances before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.
3.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the repeated and extensive length of his absences during such a short period of service.  His service simply did not rise to the level of a discharge upgrade.

4.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing; therefore, his discharge was proper and equitable and it accurately reflects his overall record of service.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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
      
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)                                         AR20130006283



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130006283



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1