IN THE CASE OF:	  

		BOARD DATE:	  26 November 2013

		DOCKET NUMBER:  AR20130007101 


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.

2.  The applicant states he understands that he was discharged for desertion.  He does not recall being discharged for the good of the service in lieu of trial by court-martial.   

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 enlisted in the Regular Army on 17 August 1972.  He successfully completed training and was awarded military occupational specialty 36K (Switchboard Operator).

3.  On 19 May 1974, he was discharged for immediate reenlistment on 20 May 1974.

4.  He accepted nonjudicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ), on the following dates:

* 20 September 1974 - for being absent without leave (AWOL) for the period 3-10 September 1974 
* 20 January 1975 - for wrongful possession of marijuana
* 3 April 1975 - for wrongful possession of marijuana and tetrahydrocannabinol and failure to go to his appointed place of duty

5.  A DD Form 458 (Charge Sheet), dated 12 June 1975, shows court-martial charges were preferred against the applicant for:

* wrongful possession of marijuana and tetrahydrocannabinol
* four specifications of failure to go to his appointed place duty
* being AWOL for the period 19 May 1975 through 10 June 1975
* missing the movement of Headquarters and Headquarters Detachment, 519th Military Police Battalion
* disobeying a lawful order from a superior commissioned officer 
* breaking restriction to company area

6.  On 25 June 1975, after consulting with counsel, he submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an undesirable discharge certificate, that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He admitted he was guilty of the charges against him or a lesser included offense.  He also acknowledged that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to submit a statement in his behalf.

7.  On 6 August 1975, the appropriate authority approved his request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 and directed that he be given an under other than honorable conditions discharge.  On 26 August 1975, he was discharged accordingly.  He had completed a total of 2 years, 11 months, and 16 days of creditable active service with 24 days of lost time.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 VA 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.  
9.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  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 applicant’s request for an upgrade of his discharge was carefully considered and it was determined there is insufficient evidence to support his request.

2.  The applicant's records show after he reenlisted he received three Article 15's.  He was charged with disobeying superior officer, wrongful possession of marijuana and tetrahydrocannabinol, four specifications of not going to his appointed place of duty, missing a movement, and being AWOL.  As a result, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of a honorable or general discharge.  He voluntarily requested discharge in lieu of court-martial.
3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  In view of the foregoing, there is no 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)                                         AR20130007101





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ABCMR Record of Proceedings (cont)                                         AR20130007101



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