IN THE CASE OF:

		BOARD DATE:  19 December 2013

		DOCKET NUMBER:  AR20130007634 


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 (UOTHC) to general.

2.  The applicant states he was absent without leave (AWOL) in 1976 to be with his first wife.  He knew it was the wrong thing to do, but he was young and in love.  He did not know he could get his discharge changed to general until recently.  Prior to the AWOL he was a good Soldier with excellent enlisted efficiency reports (EER's), scored 120 on his military occupational specialty (MOS) test, and was a member of the battalion drill team.

3.  The applicant provides 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 29 June 1973.  He held military occupational specialty (MOS) 11B (Infantryman).  He served as a mortar crewmember at Fort Hood, Texas, and was advanced to pay grade E-4 on 10 June 1975.

3.  His records show:

	a.  his MOS evaluation score in primary MOS 11B for the November 1974 evaluation period was 120;

	b.  he has one EER showing "outstanding" ratings and one EER showing "excellent" ratings; and

	c.  a letter of commendation from his brigade commander, dated 10 September 1975, for his outstanding performance of duty as a member of the 3d Brigade Drill Team during Organization Day on 15 August 1974.

4.  On 23 December 1975, charges were preferred against the applicant for being AWOL from 25 June 1975 to 27 September 1975.

5.  He consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he understood the elements of the charges against him and admitted he was guilty of at least one of the offenses which authorized a punitive discharge.  He also acknowledged he understood he might receive a discharge UOTHC which would deprive him of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Veterans Administration.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued a discharge UOTHC.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will.  He indicated he submitted a statement on his own behalf.  In the statement he indicates that after 2 years of honorable service, he just couldn't cope with the mental stress placed on him by his sergeant.  He realized the Army wasn't for him and he was AWOL as the quickest way out.

6.  The separation authority approved the request on 13 January 1976 and directed his reduction to pay grade E-1 and the issuance of an Undesirable Discharge Certificate.

7.  On 4 March 1976, the applicant was so discharged.  He completed 2 years and 2 months of total active duty service.  His DD Form 214 shows the character of his service as UOTHC.

8.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge.

9.  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 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.  

10.  Army Regulation 635-200, paragraph 3-7b, states 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 contentions that his discharge was not commensurate with the charges and should be upgraded was carefully considered and determined to be without merit.

2.  The applicant states he was AWOL to be with his first wife.  He knew it was the wrong thing to do, but he was young and in love.  He also states he was a good Soldier prior to the AWOL.  In the statement he submitted with the discharge proceedings he indicated that he couldn't cope with the mental stress placed on him by his sergeant.  He realized the Army wasn't for him and he was AWOL as the quickest way out of the Army.  The stated issue was his inability to cope with the mental stress placed on him by his sergeant – he made no mention of being AWOL to be with his wife.

3.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, even after appropriate and proper consultation with legal counsel, indicates he wished to avoid trial by court-martial and the punitive discharge he might have received.  His service was characterized by the length of his AWOL and does not warrant an upgrade to general.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATIONX

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined 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)                                         AR20100027085



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ABCMR Record of Proceedings (cont)                                         AR20130007634



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