BOARD DATE:	  23 January 2014

		DOCKET NUMBER:  AR20130007564 


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 a general discharge under honorable conditions.

2.  The applicant states that back in 1976 he was told he could mail in a form to receive an automatic upgrade of his discharge 6 months after his separation.  He failed to do so because he was focused on his wife and growing family at the time.  He would like to apologize to his country for his actions back in 1976.  He let a female have more influence over him than the military and the relationship only lasted 7 years.  He knows that if he had remained in the military the knowledge and education that he would have received would have lasted a lifetime.

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 3 May 1976.  He completed initial entry training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was private/E-1.

3.  The applicant's records contain documentation which shows he departed his unit in an absent without leave (AWOL) status on 21 June 1976 and remained so absent until he was apprehended by civil authorities on 1 November 1976, a period of 134 days of absence from military control.

4.  A DD Form 458 (Charge Sheet), dated 20 July 1976, shows court-martial charges were preferred against the applicant for violation of Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL on 21 June 1976 and remaining so absent.  His chain of command recommended his trial by special court-martial.

5.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and the procedures and rights available to him.

6.  On 4 November 1976, following counseling, the applicant submitted a voluntary written request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated he understood that by requesting discharge he was admitting guilt to the charge against him or of a lesser-included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant declined to submit a statement in his own behalf.

7.  His chain of command recommended approval of his request for discharge for the good of the service under other than honorable conditions.

8.  On 19 November 1976, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed the issuance of an undesirable discharge.
9.  30 November 1976, the applicant was discharged accordingly.

10.  The applicant's record is devoid of any evidence and he did not provide any evidence that he was ever told he would be issued a general discharge in lieu of an undesirable discharge.  

11.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  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 includes 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 and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge was considered appropriate at the time.

13.  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 contention that his discharge should be upgraded was carefully considered.

2.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial which may have resulted in a felony conviction.

3.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulation in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  The applicant's record is devoid of any evidence and he did not provide any evidence that he was ever told he would be issued a general discharge in lieu of an undesirable discharge.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20130007564



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ABCMR Record of Proceedings (cont)                                         AR20130007564



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