IN THE CASE OF:	  

		BOARD DATE:	  31 December 2013

		DOCKET NUMBER:  AR20130008099 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states:

* "they" did not care about his personal situation
* "they" wanted him to keep his mouth shut and serve
* due to the war no one would hire him, so he enlisted in the service
* his mother was in prison and she asked him to take care of his siblings
* he went to his commander and chaplain and was told they would look into the matter
* he received harsh treatment during basic training
* he did not return home until after he completed training
* while there he got a job, met and married his wife 
* he ultimately went absent without leave (AWOL) until his mother returned home and he turned himself in
* he was given the option of prison or signing the separation papers, he opted to sign papers
* he cannot change what happened, but he changed his life by becoming an ordained deacon 

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) and a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) which contains his self-authored statement.

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 30 March 1968.

3.  His record contains his disciplinary history which shows his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for one instance of being AWOL from 10 September to 15 October 1968.

4.  The applicant's record contains a DD Form 458 (Charge Sheet), dated 
28 June 1976, that shows a court-martial charge was preferred against him for one specification of being AWOL from 6 December 1968 to 24 June 1976.

5.  On 29 June 1976, 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 under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written 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 for discharge, 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 were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to submit a statement in his own behalf.

6.  The applicant's unit and intermediate commanders subsequently recommended approval with the issuance of an Undesirable Discharge Certificate.

7.  On 9 July 1976, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant be reduced to the lowest enlisted grade and be furnished an Undesirable Discharge Certificate.

8.  On 21 July 1976, the applicant was discharged accordingly.  He completed 8 months and 5 days of creditable active service with 2,786 days lost, to include 1,911 days lost subsequent to his normal expiration of service from 30 March 1971 to 20 July 1976.

9.  The applicant subsequently petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 16 July 1981, the applicant was informed that the ADRB, after careful consideration of his military records and all other available evidence, determined he was properly and equitably discharged and advised him that his request for a change in the character and/or reason of his discharge had been denied.

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

	a.  Chapter 10 of that regulation provides, in pertinent part, 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, 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.  Evidence shows the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.  He acknowledged he understood he could be ineligible for many or all benefits administered by the VA and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication his request was made under coercion or duress.

2.  His service record shows he received an Article 15 and was AWOL a total of 2,786 days lost.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  There is no evidence of record nor he did not submit any evidence that shows he had family problems or sought help from his chain of command or other channels, such as the chaplain.

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)                                         AR20130008099





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ABCMR Record of Proceedings (cont)                                         AR20130008099



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