IN THE CASE OF:	  

		BOARD DATE:	  19 November 2013

		DOCKET NUMBER:  AR20130006325 


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 an honorable or a general discharge.

2.  The applicant states his discharge was unfair because he was subjected to discrimination, harassment, physical abuse, and mistreatment.

3.  The applicant provides a self-authored letter and a copy of his DD Form 214 (Report of Separation from Active Duty).

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 Regular Army on 5 May 1976 for a period of
3 years and training as a combat engineer.  He was transferred to Fort Leonard Wood, MO to undergo his one-station unit training.

3.  On 30 June 1976, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for disobeying lawful orders from a superior noncommissioned officer (NCO).

4.  On the same day, the applicant went absent without leave (AWOL) and he remained absent in desertion until he was returned to military control on
26 August 1976.  Court-martial charges were preferred against him for the absence.

5.  On 27 September 1976, 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 also admitted he was guilty of the charges against him or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge.  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.

6.  He also elected to submit a statement in his own behalf wherein he asserted that he went AWOL when problems started at home.  He contended he could not adjust to Army life and especially having someone telling him what to do all the time.

7.  On 5 October 1976, the appropriate authority (a major general) approved his request on for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate.

8.  On 8 October 1976, 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 completed 3 months and 8 days of total active service with 57 days of lost time due to being AWOL.

9.  There is no evidence of record and he did not provide any evidence that confirms he subjected to discrimination, harassment, physical abuse, or mistreatment.


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

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.  At the time, an Undesirable Discharge Certificate was normally issued.

	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.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so, he admitted guilt to the charges against him.

2.  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.


3.  The applicant's contentions have been noted; however, they are not supported by the evidence of record and are not sufficiently mitigating to warrant relief under the circumstances given the length of his absence and his very short amount of service.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20130006325



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ABCMR Record of Proceedings (cont)                                         AR20130006325



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